The
challenge made to the constitutional validity of amendments made to the Code of
Civil Procedure (for short, 'the Code') by Amendment Acts of 1999 and 2002 was
rejected by this Court {Salem Advocates Bar Association, T.N. v. Union of India
[(2003) 1 SCC 49]}, but it was noticed in the judgment that modalities have to
be formulated for the manner in which Section 89 of the Code and, for that
matter, the other provisions which have been introduced by way of amendments,
may have to be operated. For this purpose, a Committee headed by a former Judge
of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao)
was constituted so as to ensure that the amendments become effective and result
in quicker dispensation of justice. It was further observed that the Committee
may consider devising a model case management formula as well as rules and
regulations which should be followed while taking recourse to the Alternate
Disputes Resolution (ADR) referred to in Section 89. It was also observed that
the model rules, with or without modification, which are formulated may be
adopted by the High Courts concerned for giving effect to Section 89(2)(d) of
the Code.

Further,
it was observed that if any difficulties are felt in the working of the
amendments, the same can be placed before the Committee which would consider
the same and make necessary suggestions in its report. The Committee has filed
the report.

The
report is in three parts. Report 1 contains the consideration of the various
grievances relating to amendments to the Code and the recommendations of the
Committee. Report 2 contains the consideration of various points raised in
connection with draft rules for ADR and mediation as envisaged by Section 89 of
the Code read with Order X Rule 1A, 1B and 1C. It also contains model Rules.
Report 3 contains a conceptual appraisal of case management. It also contains
the model rules of case management.

First,
we will consider Report 1 which deals with the amendments made to the Code.

Prior
to insertion of aforesaid provisions, there was no requirement of filing
affidavit with the pleadings. These provisions now require the plaint to be
accompanied by an affidavit as provided in Section 26(2) and the person
verifying the pleadings to furnish an affidavit in support of the pleading
[Order VI Rule 15(4)]. It was sought to be contended that the requirement of
filing an affidavit is illegal and unnecessary in view of the existing
requirement of verification of the pleadings. We are unable to agree. The
affidavit required to be filed under amended Section 26(2) and Order VI Rule
15(4) of the Code has the effect of fixing additional responsibility on the
deponent as to the truth of the facts stated in the pleadings. It is, however,
made clear that such an affidavit would not be evidence for the purpose of the
trial. Further, on amendment of the pleadings, a fresh affidavit shall have to
be filed in consonance thereof.

Amendment
of Order XVIII Rule 4 The amendment provides that in every case, the
examination-in- chief of a witness shall be on affidavit. The Court has already
been vested with power to permit affidavits to be filed as evidence as provided
in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the
right of cross-examination and re-examination in open court has not been
disturbed by Order XVIII Rule 4 inserted by amendment. It is true that after
the amendment cross-examination can be before a Commissioner but we feel that
no exception can be taken in regard to the power of the legislature to amend
the Code and provide for the examination-in-chief to be on affidavit or
cross-examination before a Commissioner. The scope of Order XVIII Rule 4 has
been examined and its validity upheld in Salem Advocates Bar Association's
case. There is also no question of inadmissible documents being read into
evidence merely on account of such documents being given exhibit numbers in the
affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar
Association's case, it has been held that the trial court in appropriate cases
can permit the examination-in-chief to be recorded in the Court. Proviso to
sub-rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to
apply its mind to the facts of the case, nature of allegations, nature of
evidence and importance of the particular witness for determining whether the
witness shall be examined in court or by the Commissioner appointed by it. The
power under Order XVIII Rule 4(2) is required to be exercised with great
circumspection having regard to the facts and circumstances of the case.

It is
not necessary to lay down hard and fast rules controlling the discretion of the
court to appoint Commissioner to record cross-examination and re- examination
of witnesses. The purpose would be served by noticing some illustrative cases
which would serve as broad and general guidelines for the exercise of
discretion. For instance, a case may involve complex question of title, complex
question in partition or suits relating to partnership business or suits
involving serious allegations of fraud, forgery, serious disputes as to the
execution of the will etc. In such cases, as far as possible, the court may
prefer to itself record the cross-examination of the material witnesses.
Another contention raised is that when evidence is recorded by the
Commissioner, the Court would be deprived of the benefit of watching the demeanour
of witness. That may be so but, In our view, the will of the legislature, which
has by amending the Code provided for recording evidence by the Commissioner
for saving Court's time taken for the said purpose, cannot be defeated merely
on the ground that the Court would be deprived of watching the demeanour of the
witnesses. Further, as noticed above, in some cases, which are complex in
nature, the prayer for recording evidence by the Commissioner may be declined
by the Court.

It may
also be noted that Order XVIII Rule 4, specifically provides that the
Commissioner may record such remarks as it thinks material in respect of the demeanour
of any witness while under examination. The Court would have the benefit of the
observations if made by the Commissioner.

The
report notices that in some States, advocates are being required to pass a test
conducted by the High Court in the subjects of Civil Procedure Code and
Evidence Act for the purpose of empanelling them on the panels of
Commissioners. It is a good practice. We would, however, leave it to the High
Courts to examine this aspect and decide to adopt or not such a procedure.
Regarding the apprehension that the payment of fee to the Commissioner will add
to the burden of the litigant, we feel that generally the expenses incurred
towards the fee payable to the Commissioner is likely to be less than
expenditure incurred for attending the Courts on various dates for recording
evidence besides the harassment and inconvenience to attend the Court again and
again for the same purpose and, therefore, in reality in most of the cases,
there could be no additional burden.

Amendment
to Order XVIII Rule 5(a) and (b) was made in 1976 whereby it was provided that
in all appealable cases evidence shall be recorded by the Court. Order XVIII
Rule 4 was amended by Amendment Act of 1999 and again by Amendment Act of 2002.
Order XVIII Rule 4(3) enables the commissioners to record evidence in all type
of cases including appealable cases. The contention urged is that there is
conflict between these provisions.

To
examine the contention, it is also necessary to keep in view Order XVIII Rule
19 which was inserted by Amendment Act of 1999. It reads as under:

"Power
to get statements recorded on commission.Notwithstanding anything contained in
these rules, the Court may, instead of examining witnesses in open Court,
direct their statements to be recorded on commission under rule 4A of the Order
XXVI." The aforesaid provision contains a non-obstante clause. It
overrides Order XVIII Rule 5 which provides the court to record evidence in all
appealable cases. The Court is, therefore, empowered to appoint a Commissioner
for recording of evidence in appealable cases as well.

Further,
Order XXVI Rule 4-A inserted by Amendment Act of 1999 provides that
notwithstanding anything contained in the Rules, any court may in the interest
of justice or for the expeditious disposal of the case or for any other reason,
issue Commission in any suit for the examination of any person resident within
the local limits of the court's jurisdiction. Order XVIII Rule 19 and Order
XXVI Rule 4-A, in our view, would override Order XVIII Rule 5(a) and (b). There
is, thus, no conflict.

The
next question that has been raised is about the power of the Commissioner to
declare a witness hostile. Order XVIII Rule 4(4) requires that any objection raised
during the recording of evidence before the Commissioner shall be recorded by
him and decided by the Court at the stage of arguments. Order XVIII Rule 4(8)
stipulates that the provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in
so far as they are applicable, shall apply to the issue, execution and return
of such commission thereunder. The discretion to declare a witness hostile has
not been conferred on the Commissioner. Under Section 154 of the Evidence Act,
it is the Court which has to grant permission, in its discretion, to a person
who calls a witness, to put any question to that witness which might be put in
cross-examination by the adverse party. The powers delegated to the
Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include the
discretion that is vested in Court under Section 154 of the Evidence Act to
declare a witness hostile.

If a
situation as to declaring a witness hostile arises before a Commission
recording evidence, the concerned party shall have to obtain permission from
the Court under Section 154 of the Evidence Act and it is only after grant of
such permission that the Commissioner can allow a party to cross-examine his
own witness. Having regard to the facts of the case, the Court may either grant
such permission or even consider to withdraw the commission so as to itself
record remaining evidence or impose heavy costs if it finds that permission was
sought to delay the progress of the suit or harass the opposite party.

Another
aspect is about proper care to be taken by the Commission of the original
documents. Undoubtedly, the Commission has to take proper care of the original
documents handed over to him either by Court or filed before him during
recording of evidence. In this regard, the High Courts may frame necessary
rules, regulations or issue practice directions so as to ensure safe and proper
custody of the documents when the same are before the Commissioner. It is the
duty and obligation of the Commissioners to keep the documents in safe custody
and also not to give access of the record to one party in absence of the
opposite party or his counsel. The Commissioners can be required to redeposit
the documents with the Court in case long adjournments are granted and for
taking back the documents before the adjourned date.

Additional
Evidence In Salem Advocates Bar Association's case, it has been clarified that
on deletion of Order XVIII Rule 17-A which provided for leading of additional
evidence, the law existing before the introduction of the amendment, i.e., 1st
July, 2002, would stand restored. The Rule was deleted by Amendment Act of
2002. Even before insertion of Order XVIII Rule 17-A, the Court had inbuilt
power to permit parties to produce evidence not known to them earlier or which
could not be produced in spite of due diligence. Order XVIII Rule 17-A did not
create any new right but only clarified the position. Therefore, deletion of
Order XVIII Rule 17-A does not disentitle production of evidence at a later
stage. On a party satisfying the Court that after exercise of due diligence
that evidence was not within his knowledge or could not be produced at the time
the party was leading evidence, the Court may permit leading of such evidence
at a later stage on such terms as may appear to be just.

Order
VIII Rule 1 Order VIII Rule 1, as amended by Act 46 of 1999 provides that the
defendant shall within 30 days from the date of service of summons on him,
present a written statement of his defence. The rigour of this provision was
reduced by Amendment Act 22 of 2002 which enables the Court to extend time for
filing written statement, on recording sufficient reasons therefor, but the
extension can be maximum for 90 days.

The
question is whether the Court has any power or jurisdiction to extend the
period beyond 90 days. The maximum period of 90 days to file written statement
has been provided but the consequences on failure to file written statement
within the said period have not been provided for in Order VIII Rule 1. The
point for consideration is whether the provision providing for maximum period
of ninety days is mandatory and, therefore, the Court is altogether powerless
to extend the time even in an exceptionally hard case.

It has
been common practice for the parties to take long adjournments for filing written
statements. The legislature with a view to curb this practice and to avoid
unnecessary delay and adjournments, has provided for the maximum period within
which the written statement is required to be filed. The mandatory or directory
nature of Order VIII Rule 1 shall have to be determined by having regard to the
object sought to be achieved by the amendment. It is, thus, necessary to find
out the intention of the legislature. The consequences which may follow and
whether the same were intended by the legislature have also to be kept in view.

In Raza
Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur [AIR
1965 SC 895], a Constitution Bench of this Court held that the question whether
a particular provision is mandatory or directory cannot be resolved by laying
down any general rule and it would depend upon the facts of each case and for
that purpose the object of the statute in making out the provision is the
determining factor. The purpose for which the provision has been made and its
nature, the intention of the legislature in making the provision, the serious
general inconvenience or injustice to persons resulting from whether the
provision is read one way or the other, the relation of the particular
provision to other provisions dealing with the same subject and other
considerations which may arise on the facts of a particular case including the
language of the provision, have all to be taken into account in arriving at the
conclusion whether a particular provision is mandatory or directory.

In Sangram
Singh v. Election Tribunal Kotah & Anr. [AIR 1955 SC 425], considering the
provisions of the Code dealing with the trial of the suits, it was opined that:

"Now
a code of procedure must be regarded as such. It is procedure, something
designed to facilitate justice and further its ends: not a Penal enactment for
punishment and penalties; not a thing designed to trip people up. Too technical
construction of sections that leaves no room for reasonable elasticity of
interpretation should therefore be guarded against (provided always that
justice is done to both sides) lest the very means designed for the furtherance
of justice be used to frustrate it.

Next,
there must be ever present to the mind the fact that our laws of procedure are
grounded on a principle of natural justice which requires that men should not
be condemned unheard, that decisions should not be reached behind their backs,
that proceedings that affect their lives and property should not continue in
their absence and that they should not be precluded from participating in them.
Of course, there must be exceptions and where they are clearly defined they
must be given effect to. But taken by and large, and subject to that proviso,
our laws of procedure should be construed, wherever that is reasonably
possible, in the light of that principle. " In Topline Shoes Ltd. v.
Corporation Bank [(2002) 6 SCC 33], the question for consideration was whether
the State Consumer Disputes Redressal Commission could grant time to the
respondent to file reply beyond total period of 45 days in view of Section
13(2) of the Consumer Protection Act, 1986. It was held that the intention to
provide time frame to file reply is really made to expedite the hearing of such
matters and avoid unnecessary adjournments. It was noticed that no penal
consequences had been prescribed if the reply is not filed in the prescribed
time. The provision was held to be directory. It was observed that the
provision is more by way of procedure to achieve the object of speedy disposal
of the case.

The
use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to
determine whether the provision is mandatory or directory.

We
have to ascertain the object which is required to be served by this provision
and its design and context in which it is enacted. The use of the word 'shall'
is ordinarily indicative of mandatory nature of the provision but having regard
to the context in which it is used or having regard to the intention of the
legislation, the same can be construed as directory. The rule in question has
to advance the cause of justice and not to defeat it.

The
rules of procedure are made to advance the cause of justice and not to defeat
it. Construction of the rule or procedure which promotes justice and prevents
miscarriage has to be preferred. The rules or procedure are handmaid of justice
and not its mistress. In the present context, the strict interpretation would
defeat justice.

In
construing this provision, support can also be had from Order VIII Rule 10
which provides that where any party from whom a written statement is required
under Rule 1 or Rule 9, fails to present the same within the time permitted or
fixed by the Court, the Court shall pronounce judgment against him, or make
such other order in relation to the suit as it thinks fit. On failure to file
written statement under this provision, the Court has been given the discretion
either to pronounce judgment against the defendant or make such other order in
relation to suit as it thinks fit. In the context of the provision, despite use
of the word 'shall', the court has been given the discretion to pronounce or
not to pronounce the judgment against the defendant even if written statement
is not filed and instead pass such order as it may think fit in relation to the
suit. In construing the provision of Order VIII Rule 1 and Rule 10, the
doctrine of harmonious construction is required to be applied. The effect would
be that under Rule 10 of Order VIII, the court in its discretion would have
power to allow the defendant to file written statement even after expiry of
period of 90 days provided in Order VIII Rule 1. There is no restriction in
Order VIII Rule 10 that after expiry of ninety days, further time cannot be
granted. The Court has wide power to 'make such order in relation to the suit
as it thinks fit'.

Clearly,
therefore, the provision of Order VIII Rule 1 providing for upper limit of 90
days to file written statement is directory. Having said so, we wish to make it
clear that the order extending time to file written statement cannot be made in
routine. The time can be extended only in exceptionally hard cases. While
extending time, it has to be borne in mind that the legislature has fixed the
upper time limit of 90 days. The discretion of the Court to extend the time
shall not be so frequently and routinely exercised so as to nullify the period
fixed by Order VIII Rule 1.

Section
39 Section 39(1) of the Code provides that the Court which passed a decree may,
on the application of the decree-holder send it for execution to another court
of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted
providing that nothing in the section shall be deemed to authorise the Court
which passed a decree to execute such decree against any person or property
outside the local limits of its jurisdiction. The question is whether this
newly added provision prohibits the executing court from executing a decree
against a person or property outside its jurisdiction and whether this
provision overrides Order XXI Rule 3 and Order XXI Rule 48 or whether these
provisions continue to be an exception to Section 39(4) as was the legal
position before the amendment.

Order
XXI Rule 3 provides that where immoveable property forms one estate or tenure
situate within the local limits of the jurisdiction of two or more courts, any
one of such courts may attach and sell the entire estate or tenure. Likewise,
under Order XXI Rule 48, attachment of salary of a Government servant, Railway
servant or servant of local authority can be made by the court whether the
judgment-debtor or the disbursing officer is or is not within the local limits
of the court's jurisdiction.

Section
39 does not authorise the Court to execute the decree outside its jurisdiction
but it does not dilute the other provisions giving such power on compliance of
conditions stipulated in those provisions. Thus, the provisions, such as, Order
XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be effected
by Section 39(4) of the Code.

Section
64(2) Section 64(2) in the Code has been inserted by Amendment Act 22 of 2002.
Section 64, as it originally stood, has been renumbered as Section 64(1).
Section 64(1), inter alia, provides that where an attachment has been made, any
private transfer or delivery of property attached or of any interest therein
contrary to such attachment shall be void as against all claims enforceable
under the attachment. Sub-section (2) protects the aforesaid acts if made in
pursuance of any contract for such transfer or delivery entered into and
registered before the attachment. The concept of registration has been
introduced to prevent false and frivolous cases of contracts being set up with
a view to defeat the attachments. If the contract is registered and there is subsequent
attachment, any sale deed executed after attachment will be valid. If it is
unregistered, the subsequent sale after attachment would not be valid. Such
sale would not be protected. There is no ambiguity in sub-section (2) of
Section 64.

Order
VI Rule 17 Order VI Rule 17 of the Code deals with amendment of pleadings.

By
Amendment Act 46 of 1999, this provision was deleted. It has again been
restored by Amendment Act 22 of 2002 but with an added proviso to prevent
application for amendment being allowed after the trial has commenced, unless
court comes to the conclusion that in spite of due diligence, the party could
not have raised the matter before the commencement of trial. The proviso, to
some extent, curtails absolute discretion to allow amendment at any stage. Now,
if application is filed after commencement of trial, it has to be shown that in
spite of due diligence, such amendment could not have been sought earlier. The
object is to prevent frivolous applications which are filed to delay the trial.

There
is no illegality in the provision.

Service
through Courier Order V Rule 9, inter alia, permits service of summons by party
or through courier. Order V Rule 9(3) and Order V Rule 9-A permit service of
summons by courier or by the plaintiff. Order V Rule 9(5) requires the court to
declare that the summons had been duly served on the defendant on the
contingencies mentioned in the provision. It is in the nature of deemed
service. The apprehension expressed is that service outside the normal procedure
is likely to lead to false reports of service and passing of ex parte decrees.
It is further urged that courier's report about defendant's refusal to accept
service is also likely to lead to serious malpractice and abuse.

While
considering the submissions of learned counsel, it has to be borne in mind that
problem in respect of service of summons has been one of the major causes of
delay in the due progress of the case. It is common knowledge that the
defendants have been avoiding to accept summons.

There
have been serious problems in process serving agencies in various courts. There
can, thus, be no valid objection in giving opportunity to the plaintiff to
serve the summons on the defendant or get it served through courier. There is,
however, danger of false reports of service. It is required to be adequately
guarded. The courts shall have to be very careful while dealing with a case
where orders for deemed service are required to be made on the basis of
endorsement of such service or refusal. The High Courts can make appropriate
rules and regulations or issue practice directions to ensure that such
provisions of service are not abused so as to obtain false endorsements. In
this regard, the High Courts can consider making a provision for filing of affidavit
setting out details of events at the time of refusal of service. For instance,
it can be provided that the affidavit of person effecting service shall state
as to who all were present at that time and also that the affidavit shall be in
the language known to the deponent. It can also be provided that if affidavit
or any endorsement as to service is found to be false, the deponent can be
summarily tried and punished for perjury and the courier company can be
black-listed. The guidelines as to the relevant details to be given can be
issued by the High Courts. The High Courts, it is hoped, would issue as
expeditiously as possible, requisite guidelines to the trial courts by framing
appropriate rules, order, regulations or practice directions.

Adjournments
Order XVII of the Code relates to grant of adjournments. Two amendments have
been made therein. One that adjournment shall not be granted to a party more
than three times during hearing of the suit. The other relates to cost of
adjournment. The awarding of cost has been made mandatory. Costs that can be
awarded are of two types. First, cost occasioned by the adjournment and second
such higher cost as the court deems fit.

While
examining the scope of proviso to Order XVII Rule 1 that more than three adjournments
shall not be granted, it is to be kept in view that proviso to Order XVII Rule
2 incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Clause
(b) stipulates that no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of that party. The proviso
to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read,
Order XVII does not forbid grant of adjournment where the circumstances are
beyond the control of the party. In such a case, there is no restriction on
number of adjournments to be granted. It cannot be said that even if the
circumstances are beyond the control of a party, after having obtained third
adjournment, no further adjournment would be granted. There may be cases beyond
the control of a party despite the party having obtained three adjournments.
For instance, a party may be suddenly hospitalized on account of some serious
ailment or there may be serious accident or some act of God leading to
devastation. It cannot be said that though circumstances may be beyond the
control of a party, further adjournment cannot be granted because of
restriction of three adjournments as provided in proviso to Order XVII Rule 1.

In
some extreme cases, it may become necessary to grant adjournment despite the
fact that three adjournments have already been granted (Take the example of
Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of
Tsunami). Ultimately, it would depend upon the facts and circumstances of each
case, on the basis whereof the Court would decide to grant or refuse
adjournment. The provision for costs and higher costs has been made because of
practice having been developed to award only a nominal cost even when
adjournment on payment of costs is granted. Ordinarily, where the costs or
higher costs are awarded, the same should be realistic and as far as possible
actual cost that had to be incurred by the other party shall be awarded where
the adjournment is found to be avoidable but is being granted on account of
either negligence or casual approach of a party or is being sought to delay the
progress of the case or on any such reason. Further, to save proviso to Order
XVII Rule 1 from the vice of Article 14 of the Constitution of India, it is
necessary to read it down so as not to take away the discretion of the Court in
the extreme hard cases noted above. The limitation of three adjournments would
not apply where adjournment is to be granted on account of circumstances which
are beyond the control of a party. Even in cases which may not strictly come
within the category of circumstances beyond the control of a party, the Court
by resorting to the provision of higher cost which can also include punitive
cost in the discretion of the Court, adjournment beyond three can be granted
having regard to the injustice that may result on refusal thereof, with
reference to peculiar facts of a case. We may, however, add that grant of any
adjournment let alone first, second or third adjournment is not a right of a
party. The grant of adjournment by a court has to be on a party showing special
and extra- ordinary circumstances. It cannot be in routine. While considering
prayer for grant of adjournment, it is necessary to keep in mind the
legislative intent to restrict grant of adjournments.

Order
XVIII Rule 2 Order XVIII Rule 2(4) which was inserted by Act 104 of 1976 has
been omitted by Act 46 of 1999. Under the said Rule, the Court could direct or
permit any party, to examine any party or any witness at any stage. The effect
of deletion is the restoration of the status quo ante. This means that law that
was prevalent prior to 1976 amendment, would govern. The principles as noticed
hereinbefore in regard to deletion of Order XVIII Rule 17(a) would apply to the
deletion of this provision as well.

Even
prior to insertion of Order XVIII Rule 2(4), such a permission could be granted
by the Court in its discretion. The provision was inserted in 1976 by way of
caution. The omission of Order XVIII Rule 2(4) by 1999 amendment does not take
away Court's inherent power to call for any witness at any stage either suo moto
or on the prayer of a party invoking the inherent powers of the Court.

In
Order XVIII Rule 2 sub-rules (3A) to 3(D) have been inserted by Act 22 of 2002.
The object of filing written arguments or fixing time limit of oral arguments
is with a view to save time of court. The adherence to the requirement of these
rules is likely to help in administering fair and speedy justice.

Order
VII Rule 14 Order VII Rule 14 deals with production of documents which are the
basis of the suit or the documents in plaintiff's possession or power.

These
documents are to be entered in the list of documents and produced in the Court
with plaint. Order VII Rule 14(3) requires leave of Court to be obtained for
production of the documents later. Order VII Rule 14(4) reads as under:

"Nothing
in this rule shall apply to document produced for the cross examination of the
plaintiff's witnesses, or, handed over to a witness merely to refresh his
memory." In the aforesaid Rule, it is evident that the words 'plaintiff's
witnesses' have been mentioned as a result of mistake seems to have been
committed by the legislature. The words ought to be 'defendant's witnesses'.
There is a similar provision in Order VIII Rule 1A(4) which applies to a
defendant. It reads as under:

"Nothing
in this rule shall apply to documents (a) produced for the cross-examination
of the plaintiff's witnesses, or (b) handed over to a witness merely to refresh
his memory." Order VII relates to the production of documents by the
plaintiff whereas Order VIII relates to production of documents by the
defendant.

Under
Order VIII Rule 1A(4) a document not produced by defendant can be confronted to
the plaintiff's witness during cross-examination. Similarly, the plaintiff can
also confront the defendant's witness with a document during cross-examination.
By mistake, instead of 'defendant's witnesses', the words 'plaintiff's
witnesses' have been mentioned in Order VII Rule (4).

To
avoid any confusion, we direct that till the legislature corrects the mistake,
the words 'plaintiff's witnesses, would be read as 'defendant's witnesses' in
Order VII Rule 4. We, however, hope that the mistake would be expeditiously
corrected by the legislature.

Costs
Section 35 of the Code deals with the award of cost and Section 35A with award
of compensatory costs in respect of false or vexatious claims or defences.
Section 95 deals with grant of compensation for obtaining arrest, attachment or
injunction on insufficient grounds. These three sections deal with three
different aspects of award of cost and compensation. Under Section 95 cost can
be awarded upto Rs.50,000/- and under Section 35A, the costs awardable are upto
Rs.3,000/-. Section 35B provides for award of cost for causing delay where a
party fails to take the step which he was required by or under the Code to take
or obtains an adjournment for taking such step or for producing evidence or on
any other ground. In circumstances mentioned in Section 35-B an order may be
made requiring the defaulting party to pay to other party such costs as would,
in the opinion of the court, be reasonably sufficient to reimburse the other
party in respect of the expenses incurred by him in attending the court on that
date, and payment of such costs, on the date next following the date of such
order, shall be a condition precedent to the further prosecution of the suit or
the defence. Section 35 postulates that the cost shall follow the event and if
not, reasons thereof shall be stated. The award of the cost of the suit is in
the discretion of the Court. In Sections 35 and 35B, there is no upper limit of
amount of cost awardable.

Judicial
notice can be taken of the fact that many unscrupulous parties take advantage
of the fact that either the costs are not awarded or nominal costs are awarded
on the unsuccessful party. Unfortunately, it has become a practice to direct
parties to bear their own costs. In large number of cases, such an order is
passed despite Section 35(2) of the Code. Such a practice also encourages
filing of frivolous suits. It also leads to taking up of frivolous defences.
Further wherever costs are awarded, ordinarily the same are not realistic and
are nominal. When Section 35(2) provides for cost to follow the event, it is
implicit that the costs have to be those which are reasonably incurred by a
successful party except in those cases where the Court in its discretion may
direct otherwise by recording reasons thereof. The costs have to be actual
reasonable costs including the cost of the time spent by the successful party,
the transportation and lodging, if any, or any other incidental cost besides
the payment of the court fee, lawyer's fee, typing and other cost in relation
to the litigation. It is for the High Courts to examine these aspects and
wherever necessary make requisite rules, regulations or practice direction so
as to provide appropriate guidelines for the subordinate courts to follow.

Section
80 Section 80(1) of the Code requires prior notice of two months to be served
on the Government as a condition for filing a suit except when there is urgency
for interim order in which case the Court may not insist on the rigid rule of
prior notice. The two months period has been provided for so that the
Government shall examine the claim put up in the notice and has sufficient time
to send a suitable reply. The underlying object is to curtail the litigation.
The object also is to curtail the area of dispute and controversy. Similar provisions
also exist in various other legislations as well. Wherever the statutory
provision requires service of notice as a condition precedent for filing of
suit and prescribed period therefore, it is not only necessary for the
governments or departments or other statutory bodies to send a reply to such a
notice but it is further necessary to properly deal with all material points
and issues raised in the notice. The Governments, Government departments or
statutory authorities are defendants in large number of suits pending in
various courts in the country. Judicial notice can be taken of the fact that in
large number of cases either the notice is not replied or in few cases where
reply is sent, it is generally vague and evasive. The result is that the object
underlying Section 80 of the Code and similar provisions gets defeated. It not
only gives rise to avoidable litigation but also results in heavy expense and
cost to the exchequer as well. Proper reply can result in reduction of
litigation between State and the citizens. In case proper reply is sent either
the claim in the notice may be admitted or area of controversy curtailed or the
citizen may be satisfied on knowing the stand of the State. There is no
accountability in the Government, Central or State or the statutory authorities
in violating the spirit and object of Section 80.

These
provisions cast an implied duty on all concerned governments and States and
statutory authorities to send appropriate reply to such notices. Having regard
to the existing state of affairs, we direct all concerned governments, Central
or State or other authorities, whenever any statute requires service of notice
as a condition precedent for filing of suit or other proceedings against it, to
nominate, within a period of three months, an officer who shall be made
responsible to ensure that replies to notices under Section 80 or similar
provisions are sent within the period stipulated in a particular legislation.
The replies shall be sent after due application of mind. Despite such
nomination, if the Court finds that either the notice has not been replied or
reply is evasive and vague and has been sent without proper application of
mind, the Court shall ordinarily award heavy cost against the Government and
direct it to take appropriate action against the concerned Officer including
recovery of costs from him.

Section
115 of the Code vests power of revision in the High Court over courts
subordinate to it. Proviso to Section 115(1) of the Code before the amendment
by Act 46 of 1999 read as under :

"Provided
that the High Court shall not, under this section vary or reverse any order
made, or may order deciding an issue, in the course of a suit or other
proceeding except where (a) the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceeding; or (b) the order, if allowed to stand, would occasion a failure of
justice or cause irreparable injury to the party against whom it was
made." Now, the aforesaid proviso has been substituted by the following
proviso. :

"Provided
that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceedings." The aforesaid clause (b) stands omitted. The question is
about the constitutional powers of the High Courts under Article 227 on account
of omission made in Section 115 of the Code. The question stands settled by a
decision of this Court in Surya Dev Rai v. Ram Chander Rai & Ors.

[2003
(6) SCC 675] holding that the power of the High Court under Articles 226 and
227 of the Constitution is always in addition to the revisional jurisdiction
conferred on it. Curtailment of revisional jurisdiction of the High Court under
Section 115 of the Code does not take away and could not have taken away the
constitutional jurisdiction of the High Court. The power exists, untrammeled by
the amendment in Section 115 and is available to be exercised subject to rules
of self-discipline and practice which are as well settled.

Section
148 The amendment made in Section 148 affects the power of the Court to enlarge
time that may have been fixed or granted by the Court for the doing of any act
prescribed or allowed by the Code. The amendment provides that the period shall
not exceed 30 days in total. Before amendment, there was no such restriction of
time. Whether the Court has no inherent power to extend the time beyond 30 days
is the question. We have no doubt that the upper limit fixed in Section 148
cannot take away the inherent power of the Court to pass orders as may be
necessary for the ends of justice or to prevent abuse of process of Court. The
rigid operation of the section would lead to absurdity. Section 151 has,
therefore, to be allowed to fully operate. Extension beyond maximum of 30 days,
thus, can be permitted if the act could not be performed within 30 days for the
reasons beyond the control of the party. We are not dealing with a case where
time for doing an act has been prescribed under the provisions of the
Limitation Act which cannot be extended either under Section 148 or Section
151. We are dealing with a case where the time is fixed or granted by the Court
for performance of an act prescribed or allowed by the Court.

In Mahanth
Ram Das v. Ganga Das [AIR 1961 SC 882], this Court considered a case where an
order was passed by the Court that if the Court fee was not paid by a
particular day, the suit shall stand dismissed.

It was
a self-operating order leading to dismissal of the suit. The party's
application filed under Sections 148 and 151 of the Code for extension of time
was dismissed. Allowing the appeal, it was observed:

"How
undesirable it is to fix time peremptorily for a future happening which leaves
the Court powerless to deal with events that might arise in between, it is not
necessary to decide in this appeal. These orders turn out, often enough to be
inexpedient. Such procedural orders, though peremptory (conditional decree
apart), are, in essence, in terrorem, so that dilatory litigants might put
themselves in order and avoid delay.

They
do not, however, completely estop a Court from taking note of events and
circumstances which happen within the time fixed. For example, it cannot be
said that, if the appellant had started with the full money ordered to be paid
and came well in time, but was set upon and robbed by thieves the day previous,
he could not ask for extension of time or that the Court was powerless to
extend it. Such orders are not like the law of the Medes and the
Persians." There can be many cases where non-grant of extension beyond 30
days would amount to failure of justice. The object of the Code is not to
promote failure of justice. Section 148, therefore, deserves to be read down to
mean that where sufficient cause exists or events are beyond the control of a
party, the Court would have inherent power to extend time beyond 30 days.

Order
IX Rule 5 The period of seven days mentioned in Order IX Rule 5 is clearly
directory.

Order
XI Rule 15 The stipulation in Rule 15 of Order XI confining the inspection of
documents 'at or before the settlement of issues' instead of 'at any time' is
also nothing but directory. It does not mean that the inspection cannot be
allowed after the settlement of issues.

Judicial
Impact Assessment The Committee has taken note of para 7.8.2 of Volume I of the
Report of the National Commission to Review the Working of the Constitution
which reads as follows :

"7.8.2
Government of India should not throw the entire burden of establishing the
subordinate courts and maintaining the subordinate judiciary on the State
Governments. There is a concurrent obligation on the Union Government to meet
the expenditure for subordinate courts. Therefore, the Planning Commission and
the Finance Commission must allocate sufficient funds from national resources
to meet the demands of the State Judiciary in each of the States." The
Committee has further noticed that :

"33.3
As pointed out by the Constitution Review Commission, the laws which are being
administered by the Courts which are subordinate to the High Court are laws
which have been made by, (a) parliament on subjects which fall under the
Entries in List I and List III of Schedule 7 to the Constitution, or (b) State
legislatures on subjects which fall under the Entries in List II and List III
of Schedule 7 to the Constitution.

But,
the bulk of the cases (civil, criminal) in the subordinate Courts concern the
Law of Contract, Transfer of Property Act, Sale of Goods Act, Negotiable
Instruments Act, Indian Penal Code, Code of Civil Procedure, Code of Criminal
Procedure etc., which are all Central Laws made under List III. In addition,
the subordinate Courts adjudicate cases (in civil, criminal) arising under
Central Laws made under List I.

33.4
The central Government has, therefore, to bear a substantial portion of the
expenditure on subordinate Courts which are now being established/maintained by
the States. (The Central Government has only recently given monies for the fast
track courts but these courts are a small fraction of the required number).

33.5
Under Article 247, Central Government could establish Courts for the purpose of
administering Central Laws in List I. Except a few Tribunals, no such Courts
have been established commensurate with the number of cases arising out of
subjects in List I." The Committee has suggested that the Central
Government has to provide substantial funds for establishing courts which are
subordinate to the High Court and the Planning Commission and the Finance must
make adequate provisions therefore, noticing that it has been so recommended by
the Constitution Review Committee.

The
Committee has also suggested that :

"Further,
there must be 'judicial impact assessment', as done in the United States,
whenever any legislation is introduced either in Parliament or in the State
Legislatures. The financial memorandum attached to each Bill must estimate not
only the budgetary requirement of other staff but also the budgetary
requirement for meeting the expenses of the additional cases that may arise out
of the new Bill when it is passed by the legislature. The said budget must
mention the number of civil and criminal cases likely to be generated by the
new Act, how many Courts are necessary, how many Judges and staff are necessary
and what is the infrastructure necessary. So far in the last fifty years such a
judicial impact assessment has never been made by any legislature or by
Parliament in our country." Having regard to the constitutional obligation
to provide fair, quick and speedy justice, we direct the Central Government to
examine the aforesaid suggestions and submit a report on this Court within four
months.

Report
No.2 We will now take up Report No.2 dealing with model Alternative Dispute
Resolution and Mediation Rules.

Part X
of the Code (Sections 121 to 131) contains provisions in respect of the Rules.
Sections 122 and 125 enable the High Courts to make Rules. Section 128 deals
with matters for which rules may provide.

It,
inter alia, states that the rules which are not inconsistent with the
provisions in the body of the Code, but, subject thereto, may provide for any
matters relating to the procedure of Civil Courts.

The
question for consideration is about framing of the rules for the purposes of
Section 89 and Order X Rules 1A, 1B and 1C. These provisions read as under:

"89.Settlement
of disputes outside the Court

(1) Where
it appears to the Court that there exist elements of a settlement which may be
acceptable to the parties, the Court shall formulate the terms of settlement
and given them to the parties for their observations and after receiving the
observations of the parties, the Court may reformulate the terms of a possible
settlement and refer the same for

(a) arbitration;

(b) conciliation;

(c) judicial
settlement including settlement through Lok Adalat; or

(d) mediation.

(2)
Where a dispute has been referred (a) for arbitration or conciliation, the
provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply as if the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;

(b) to
Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with
the provisions of sub-section (1) of section 20 of the Legal Services Authority
Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in
respect of the dispute so referred to the Lok Adalat;

(c)
for judicial settlement, the Court shall refer the same to a suitable
institution or person and such institution or person shall be deemed to be a Lok
Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of
1987) shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;

(d) for
mediation, the Court shall effect a compromise between the parties and shall
follow such procedure as may be prescribed.

1A.
Direction of the court to opt for any one mode of alternative dispute
resolution.After recording the admissions and denials, the Court shall direct
the parties to the suit to opt either mode of the settlement outside the Court
as specified in sub-section (1) of section 89. On the option of the parties,
the Court shall fix the date of appearance before such forum or authority as
may be opted by the parties.

1B.
Appearance before the conciliatory forum or authorityWhere a suit is referred
under rule 1A, the parties shall appear before such forum or authority for
conciliation of the suit.

1C.
Appearance before the Court consequent to the failure of efforts of
conciliationWhere a suit is referred under rule 1A and the presiding officer of
conciliation forum or authority is satisfied that it would not be proper in the
interest of justice to proceed with the matter further, then, it shall refer
the matter again to the Court and direct the parties to appear before the Court
on the date fixed by it." Some doubt as to a possible conflict has been
expressed in view of use of the word 'may' in Section 89 when it stipulates
that 'the Court may reformulate the terms of a possible settlement and refer
the same for' and use of the word 'shall' in Order X, Rule 1A when it states
that 'the Court shall direct the parties to the suit to opt either mode of
settlements outside the Court as specified in sub-section (1) of Section 89'.

As can
be seen from Section 89, its first part uses the word 'shall' when it
stipulates that the 'court shall formulate terms of settlement'. The use of the
word 'may' in later part of Section 89 only relates to the aspect of
reformulating the terms of a possible settlement. The intention of the
legislature behind enacting Section 89 is that where it appears to the Court
that there exists element of a settlement which may be acceptable to the
parties, they, at the instance of the court, shall be made to apply their mind
so as to opt for one or the other of the four ADR methods mentioned in the
Section and if the parties do not agree, the court shall refer them to one or
other of the said modes. Section 89 uses both the word 'shall' and 'may'
whereas Order X, Rule 1A uses the word 'shall' but on harmonious reading of
these provisions it becomes clear that the use of the word 'may' in Section 89
only governs the aspect of reformulation of the terms of a possible settlement
and its reference to one of ADR methods. There is no conflict. It is evident
that what is referred to one of the ADR modes is the dispute which is
summarized in the terms of settlement formulated or reformulated in terms of
Section 89.

One of
the modes to which the dispute can be referred is 'Arbitration'. Section 89 (2)
provides that where a dispute has been referred for Arbitration or Conciliation,
the provisions of the Arbitration and Conciliation Act, 1996 (for short '1996
Act') shall apply as if the proceedings for Arbitration or Conciliation were
referred for settlement under the provisions of 1996 Act. Section 8 of the 1996
Act deals with the power to refer parties to Arbitration where there is
arbitration agreement.

As
held in P.Anand Gajapathi Raju and Others v. P.V.G.Raju (Dead) and Others
[(2000) 4 SCC 539], 1996 Act governs a case where arbitration is agreed upon
before or pending a suit by all the parties. The 1996 Act, however, does not
contemplate a situation as in Section 89 of the Code where the Court asks the
parties to choose one or other ADRs including Arbitration and the parties
choose Arbitration as their option. Of course, the parties have to agree for
Arbitration. Section 82 of 1996 Act enables the High Court to make Rules
consistent with this Act as to all proceedings before the Court under 1996 Act.
Section 84 enables the Central Government to make rules for carrying out the provisions
of the Act. The procedure for option to Arbitration among four ADRs is not
contemplated by the 1996 Act and, therefore, Section 82 or 84 has no
applicability where parties agree to go for arbitration under Section 89 of the
Code. As already noticed, for the purposes of Section 89 and Order X, Rule 1A,
1B and 1C, the relevant Sections in Part X of the Code enable the High Court to
frame rules. If reference is made to Arbitration under Section 89 of the Code,
1996 Act would apply only from the stage after reference and not before the
stage of reference when options under Section 89 are given by the Court and
chosen by the parties. On the same analogy, 1996 Act in relation to
Conciliation would apply only after the stage of reference to Conciliation. The
1996 Act does not deal with a situation where after suit is filed, the court
requires a party to choose one or other ADRs including Conciliation. Thus, for
Conciliation also rules can be made under Part X of the Code for purposes of
procedure for opting for 'Conciliation' and upto the stage of reference to
Conciliation. Thus, there is no impediment in the ADR rules being framed in
relation to Civil Court as contemplated in Section 89 upto the stage of
reference to ADR. The 1996 Act comes into play only after the stage of
reference upto the award.

Applying
the same analogy, the Legal Services Authority Act, 1987 (for short '1987 Act')
or the Rules framed thereunder by the State Governments cannot act as
impediment in the High Court making rules under Part X of the Code covering the
manner in which option to Lok Adalat can be made being one of the modes
provided in Section 89. The 1987 Act also does not deal with the aspect of
exercising option to one of four ADR methods mentioned in Section 89. Section 89
makes applicable 1996 Act and 1987 Act from the stage after exercise of options
and making of reference.

A
doubt has been expressed in relation to clause (d) of Section 89 (2) of the
Code on the question as to finalisation of the terms of the compromise. The
question is whether the terms of compromise are to be finalised by or before
the mediator or by or before the court. It is evident that all the four
alternatives, namely, Arbitration, Conciliation, judicial settlement including
settlement through Lok Adalat and mediation are meant to be the action of
persons or institutions outside the Court and not before the Court. Order X,
Rule 1C speaks of the 'Conciliation forum' referring back the dispute to the
Court. In fact, the court is not involved in the actual mediation/conciliation.
Clause (d) of Section 89(2) only means that when mediation succeeds and parties
agree to the terms of settlement, the mediator will report to the court and the
court, after giving notice and hearing the parties, 'effect' the compromise and
pass a decree in accordance with the terms of settlement accepted by the
parties.

Further,
in this view, there is no question of the Court which refers the matter to
mediation/conciliation being debarred from hearing the matter where settlement
is not arrived at. The Judge who makes the reference only considers the limited
question as to whether there are reasonable grounds to expect that there will
be settlement and on that ground he cannot be treated to be disqualified to try
the suit afterwards if no settlement is arrived at between the parties.

The
question also is about the payment made and expenses to be incurred where the
court compulsorily refers a matter for conciliation/mediation. Considering
large number of responses received by the Committee to the draft rules it has
suggested that in the event of such compulsory reference to
conciliation/mediation procedures if expenditure on conciliation/mediation is
borne by the government, it may encourage parties to come forward and make attempts
at conciliation/mediation. On the other hand, if the parties feel that they
have to incur extra expenditure for resorting to such ADR modes, it is likely
to act as a deterrent for adopting these methods. The suggestion is laudable.

The
Central Government is directed to examine it and if agreed, it shall request
the Planning Commission and Finance Commission to make specific financial
allocation for the judiciary for including the expenses involved for
mediation/conciliation under Section 89 of the Code. In case, Central
Government has any reservations, the same shall be placed before the court
within four months. In such event, the government shall consider provisionally
releasing adequate funds for these purposes also having regard to what we have
earlier noticed about many statutes that are being administered and litigations
pending in the Courts in various States are central legislations concerning the
subjects in List I and List III of Schedule VII to the Constitution of India.

With a
view to enable the Court to refer the parties to conciliation/mediation, where
parties are unable to reach a consensus on an agreed name, there should be a
panel of well trained conciliators/mediators to which it may be possible for
the Court to make a reference. It would be necessary for the High Courts and
district courts to take appropriate steps in the direction of preparing the
requisite panels.

A
doubt was expressed about the applicability of ADR rules for dispute arising
under the Family Courts Act since that Act also contemplates rules to be made.
It is, however, to be borne in mind that the Family Courts Act applies the Code
for all proceedings before it. In this view, ADR rules made under the Code can
be applied to supplement the rules made under the Family Courts Act and provide
for ADR insofar as conciliation/mediation is concerned.

It
seems clear from the report that while drafting the model rules, after
examining the mediation rules in various countries, a fine distinction is tried
to be maintained between conciliation and mediation, accepting the views
expressed by British author Mr.Brown in his work on India that in
'conciliation' there is little more latitude and conciliator can suggest some
terms of settlements too.

When
the parties come to a settlement upon a reference made by the Court for
mediation, as suggested by the Committee that there has to be some public
record of the manner in which the suit is disposed of and, therefore, the Court
has to first record the settlement and pass a decree in terms thereof and if
necessary proceed to execute it in accordance with law. It cannot be accepted
that such a procedure would be unnecessary.

If the
settlement is not filed in the Court for the purpose of passing of a decree,
there will be no public record of the settlement. It is, however, a different
matter if the parties do not want the court to record a settlement and pass a
decree and feel that the settlement can be implemented even without decree. In
such eventuality, nothing prevents them in informing the Court that the suit
may be dismissed as a dispute has been settled between the parties outside the
Court.

Regarding
refund of the court fee where the matter is settled by the reference to one of
the modes provided in Section 89 of the Act, it is for the State Governments to
amend the laws on the lines of amendment made in Central Court Fee Act by 1999
Amendment to the Code. The State Governments can consider making similar
amendments in the State Court Fee legislations.

The
draft rules have been finalised by the Committee. Prior to finalisation, the
same were circulated to the High Courts, subordinate courts, the Bar Council of
India, State Bar Councils and the Bar Associations, seeking their responses.
Now, it is for the respective High Courts to take appropriate steps for making
rules in exercise of rule making power subject to modifications, if any, which
may be considered relevant.

The
draft Civil Procedure-Alternative Dispute Resolution and Mediation Rules as
framed by the Committee read as under:

"Civil
Procedure ADR and Mediation Rules (These Rules are the final Rules framed by
the Committee, in modification of the Draft Rules circulated earlier, after
considering the responses to the Consultation paper) Civil Procedure
Alternative Dispute Resolution and Mediation Rules, 2003 In exercise of the
rule making power under Part X of the Code of Civil Procedure, 1908 (5 of 1908)
and clause (d) of sub-section (2) of Section 89 of the said Code, the High
Court of .., is hereby issuing the following Rules:

Part I
Alternative Dispute Resolution Rules Rule 1: Title These Rules in Part I shall
be called the 'Civil Procedure Alternative Dispute Resolution Rules 2003'.

Rule
2: Procedure for directing parties to opt for alternative modes of settlement
(a) The Court shall, after recording admissions and denials at the first
hearing of the suit under Rule 1 of Order X, and where it appears to the Court
that there exist elements of a settlement which may be acceptable to the
parties, formulate the terms of settlement and give them to the parties for
their observations under sub- section (1) of Section 89, and the parties shall
submit to the Court their responses within thirty days of the first hearing.

(b) At
the next hearing, which shall be not later than thirty days of the receipt of
responses, the Court may reformulate the terms of a possible settlement and
shall direct the parties to opt for one of the modes of settlement of disputes
outside the Court as specified in clauses (a) to (d) of sub-section (1) of
Section 89 read with Rule 1A of Order X, in the manner stated hereunder,
Provided that the Court, in the exercise of such power, shall not refer any
dispute to arbitration or to judicial settlement by a person or institution
without the written consent of all the parties to the suit.

Rule
3: Persons authorized to take decision for the Union of India, State
Governments and others:

(1)
For the purpose of Rule 2, the Union of India or the Government of a State or
Union Territory, all local authorities, all Public Sector Undertakings, all
statutory corporations and all public authorities shall nominate a person or
persons or group of persons who are authorized to take a final decision as to
the mode of Alternative Dispute Resolution in which it proposes to opt in the
event of direction by the Court under Section 89 and such nomination shall be
communicated to the High Court within the period of three months from the date
of commencement of these Rules and the High Court shall notify all the
subordinate courts in this behalf as soon as such nomination is received from
such Government or authorities.

(2)
Where such person or persons or group of persons have not been nominated as
aforesaid, such party as referred to in clause (1) shall, if it is a plaintiff,
file along with the plaint or if it is a defendant file, along with or before
the filing of the written statement, a memo into the Court, nominating a person
or persons or group of persons who is or are authorized to take a final
decision as to the mode of alternative dispute resolution, which the party
prefers to adopt in the event of the Court directing the party to opt for one
or other mode of Alternative Dispute Resolution.

Rule
4: Court to give guidance to parties while giving direction to opt (a) Before
directing the parties to exercise option under clause (b) of Rule 2, the Court
shall give such guidance as it deems fit to the parties, by drawing their
attention to the relevant factors which parties will have to take into account,
before they exercise their option as to the particular mode of settlement, namely
:

(i)
that it will be to the advantage of the parties, so far as time and expense are
concerned, to opt for one or other of these modes of settlement referred to in
section 89 rather than seek a trial on the disputes arising in the suit;

(ii)
that, where there is no relationship between the parties which requires to be
preserved, it may be in the interest of the parties to seek reference of the
matter of arbitration as envisaged in clause (a) of sub- section (1) of section
89.

(iii)
that, where there is a relationship between the parties which requires to be
preserved, it may be in the interest of parties to seek reference of the matter
to conciliation or mediation, as envisaged in clauses (b) or (d) of sub-section
(1) of section 89.

Explanation: Disputes arising in matrimonial,
maintenance and child custody matters shall, among others, be treated as cases
where a relationship between the parties has to be preserved.

(iv)
that, where parties are interested in a final settlement which may lead to a
compromise, it will be in the interests of the parties to seek reference of the
matter to Lok Adalat or to judicial settlement as envisaged in clause (c) of
sub-section (1) of section 89.

(v) the
difference between the different modes of settlement, namely, arbitration,
conciliation, mediation and judicial settlement as explained below :

Settlement
by 'Arbitration' means the process by which an arbitrator appointed by parties
or by the Court, as the case may be, adjudicates the disputes between the
parties to the suit and passes an award by the application of the provisions of
the Arbitration and Conciliation Act, 1996 (26 of 1996), in so far as they
refer to arbitration.

Settlement
by 'Conciliation' means the process by which a conciliator who is appointed by
parties or by the Court, as the case may be, conciliates the disputes between
the parties to the suit by the application of the provisions of the Arbitration
and Conciliation Act, 1996 (26 of 1996) in so far as they relate to
conciliation, and in particular, in exercise of his powers under sections 67
and 73 of that Act, by making proposals for a settlement of the dispute and by
formulating or reformulating the terms of a possible settlement; and has a
greater role than a mediator.

Settlement
by 'Mediation' means the process by which a mediator appointed by parties or by
the Court, as the case may be, mediates the dispute between the parties to the
suit by the application of the provisions of the Mediation Rules, 2003 in Part
II, and in particular, by facilitating discussion between parties directly or
by communicating with each other through the mediator, by assisting parties in
identifying issues, reducing misunderstandings, clarifying priorities,
exploring areas of compromise, generating options in an attempt to solve the
dispute and emphasizing that it is the parties own responsibility for making
decisions which affect them.

'Judicial
settlement' means a final settlement by way of compromise entered into before a
suitable institution or person to which the Court has referred the dispute and
which institution or person are deemed to be the Lok Adalats under the
provisions of the Legal Service Authority Act, 1987 (39 of 1987) and where
after such reference, the provisions of the said Act apply as if the dispute
was referred to a Lok Adalat under the provisions of that Act.

Rule 5:
Procedure for reference by the Court to the different modes of settlement :

(a)
Where all parties to the suit decide to exercise their option and to agree for
settlement by arbitration, they shall apply to the Court, within thirty days of
the direction of the Court under clause (b) of Rule 2 and the Court shall,
within thirty days of the said application, refer the matter to arbitration and
thereafter the provisions of the Arbitration and Conciliation Act, 1996 (26 of
1996) which are applicable after the stage of making of the reference to
arbitration under that Act, shall apply as if the proceedings were referred for
settlement by way of arbitration under the provisions of that Act;

(b)
Where all the parties to the suit decide to exercise their option and to agree
for settlement by the Lok Adalat or where one of the parties applies for
reference to Lok Adalat, the procedure envisaged under the Legal Services Act,
1987 and in particular by section 20 of that Act, shall apply.

(c)
Where all the parties to the suit decide to exercise their option and to agree
for judicial settlement, they shall apply to the Court within thirty days of
the direction under clause (b) of Rule 2 and then the Court shall, within
thirty days of the application, refer the matter to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat and
thereafter the provisions of the Legal Services Authority Act, 1987 (39 of
1987) which are applicable after the stage of making of the reference to Lok Adalat
under that Act, shall apply as if the proceedings were referred for settlement
under the provisions of that Act;

(d)
Where none of the parties are willing to agree to opt or agree to refer the
dispute to arbitration, or Lok Adalat, or to judicial settlement, within thirty
days of the direction of the Court under clause (b) of Rule 2, they shall
consider if they could agree for reference to conciliation or mediation, within
the same period.

(e)(i)
Where all the parties opt and agree for conciliation, they shall apply to the
Court, within thirty days of the direction under clause (b) of Rule 2 and the
Court shall, within thirty days of the application refer the matter to
conciliation and thereafter the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) which are applicable after the stage of making of the
reference to conciliation under that Act, shall apply, as if the proceedings
were referred for settlement by way of conciliation under the provisions of
that Act;

(ii)
Where all the parties opt and agree for mediation, they shall apply to the
Court, within thirty days of the direction under clause (b) of Rule 2 and the
Court shall, within thirty days of the application, refer the matter to
mediation and then the Mediation Rules, 2003 in Part II shall apply.

(f)
Where under clause (d), all the parties are not able to opt and agree for
conciliation or mediation, one or more parties may apply to the Court within
thirty days of the direction under clause (b) of Rule 2, seeking settlement through
conciliation or mediation, as the case may be, and in that event, the Court
shall, within a further period of thirty days issue notice to the other parties
to respond to the application, and

(i) in
case all the parties agree for conciliation, the Court shall refer the matter
to conciliation and thereafter, the provisions of the Arbitration and
Conciliation Act, 1996 which are applicable after the stage of making of the
reference to conciliation under that Act, shall apply.

(ii) in
case all the parties agree for mediation, the Court shall refer the matter to
mediation in accordance with the Civil Procedure Mediation Rules, 2003 in Part
II shall apply.

(iii) in
case all the parties do not agree and where it appears to the Court that there
exist elements of a settlement which may be acceptable to the parties and that
there is a relationship between the parties which has to be preserved, the
Court shall refer the matter to conciliation or mediation, as the case may be.
In case the dispute is referred to Conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 which are applicable after the stage of
making of the reference to Conciliation under that Act shall and in case the
dispute is referred to mediation, the provisions of the Civil Procedure-Mediation
Rules, 2003, shall apply.

(g)(i)
Where none of the parties apply for reference either to arbitration, or Lok Adalat,
or judicial settlement, or for conciliation or mediation, within thirty days of
the direction under clause (b) of Rule 2, the Court shall, within a further
period of thirty days, issue notices to the parties or their representatives
fixing the matter for hearing on the question of making a reference either to
conciliation or mediation.

(ii)
After hearing the parties or their representatives on the day so fixed the
Court shall, if there exist elements of a settlement which may be acceptable to
the parties and there is a relationship between the parties which has to be
preserved, refer the matter to conciliation or mediation. In case the dispute
is referred to Conciliation, the provisions of the Arbitration and Conciliation
Act, 1996 which are applicable after the stage of making of the reference to
Conciliation under that Act shall and in case the dispute is referred to mediation,
the provisions of the Civil Procedure Mediation Rules, 2003, shall apply.

(h)(i)
No next friend or guardian for the suit shall, without the leave of the Court,
expressly recorded in the proceedings of the Court, opt for any one of the
modes of alternative dispute resolution nor shall enter into any settlement on
behalf of a minor or person under disability with reference to the suit in
which he acts as mere friend or guardian.

(ii)
Where an application is made to the Court for leave to enter into a settlement
initiated into in the alternative dispute resolution proceedings on behalf of a
minor or other person under disability and such minor or other person under
disability is represented by Counsel or pleader, the counsel or pleader shall
file a certificate along with the said application to the effect that the
settlement is, in his opinion, for the benefit of the minor or other person
under disability. The decree of the Court based on the settlement to which the
minor or other person under disability is a party, shall refer to the sanction
of the Court thereto and shall set out the terms of the settlement.

Rule 6:
Referral to the Court and appearance before the Court upon failure of attempts
to settle disputes by conciliation or judicial settlement or mediation :

(1)
Where a suit has been referred for settlement for conciliation, mediation or
judicial settlement and has not been settled or where it is felt that it would
not be proper in the interests of justice to proceed further with the matter,
the suit shall be referred back again to the Court with a direction to the
parties to appear before the Court on a specific date.

(2)
Upon the reference of the matter back to the Court under sub-rule (1) or under
sub- section (5) of section 20 of the Legal Services Authority Act, 1987, the
Court shall proceed with the suit in accordance with law.

Rule 7
: Training in alternative methods of resolution of disputes, and preparation of
manual :

(a)
The High Court shall take steps to have training courses conducted in places
where the High Court and the District Courts or Courts of equal status are
located, by requesting bodies recognized by the High Court or the Universities
imparting legal education or retired Faculty Members or other persons who,
according to the High Court are well versed in the techniques of alternative
methods of resolution of dispute, to conduct training courses for lawyers and
judicial officers.

(b)(i)
The High Court shall nominate a committee of judges, faculty members including
retired persons belonging to the above categories, senior members of the Bar,
other members of the Bar specially qualified in the techniques of alternative
dispute resolution, for the purpose referred to in clause (a) and for the
purpose of preparing a detailed manual of procedure for alternative dispute
resolution to be used by the Courts in the State as well as by the arbitrators,
or authority or person in the case of judicial settlement or conciliators or
mediators.

(ii)
The said manual shall describe the various methods of alternative dispute
resolution, the manner in which any one of the said methods is to be opted for,
the suitability of any particular method for any particular type of dispute and
shall specifically deal with the role of the above persons in disputes which
are commercial or domestic in nature or which relate to matrimonial,
maintenance and child custody matters.

(c)
The High Court and the District Courts shall periodically conduct seminars and
workshops on the subject of alternative dispute resolution procedures
throughout the State or States over which the High Court has jurisdiction with
a view to bring awareness of such procedures and to impart training to lawyers
and judicial officers.

(d)
Persons who have experience in the matter of alternative dispute resolution
procedures, and in particular in regard to conciliation and mediation, shall be
given preference in the matter of empanelment for purposes of conciliation or
mediation.

Rule 8
: Applicability to other proceedings :

The
provisions of these Rules may be applied to proceedings before the Courts,
including Family Courts constituted under the Family Courts Act (66 of 1984),
while dealing with matrimonial, maintenance and child custody disputes,
wherever necessary, in addition to the rules framed under the Family Courts
Act, (66 of 1984).

PART
II CIVIL PROCEDURE MEDIATION RULES Rule 1 : Title :

These
Rules in Part II shall be called the Civil Procedure Mediation Rules, 2003.

Rule 2
: Appointment of mediator :

(a)
Parties to a suit may all agree on the name of the sole mediator for mediating
between them.

(b)
Where, there are two sets of parties and are unable to agree on a sole
mediator, each set of parties shall nominate a mediator.

(c)
Where parties agree on a sole mediator under clause (a) or where parties
nominate more than one mediator under clause (b), the mediator need not
necessarily be from the panel of mediators referred to in Rule 3 nor bear the
qualifications referred to in Rule 4 but should not be a person who suffers
from the disqualifications referred to in Rule 5.

(d)
Where there are more than two sets of parties having diverse interests, each
set shall nominate a person on its behalf and the said nominees shall select
the sole mediator and failing unanimity in that behalf, the Court shall appoint
a sole mediator.

Rule 3
: Panel of mediators :

(a)
The High Court shall, for the purpose of appointing mediators between parties
in suits filed on its original side, prepare a panel of mediators and publish
the same on its Notice Board, within thirty days of the coming into force of
these Rules, with copy to the Bar Association attached to the original side of
the High Court.

(b)(i)
The Courts of the Principal District and Sessions Judge in each District or the
Courts of the Principal Judge of the City Civil Court or Courts of equal status
shall, for the purposes of appointing mediators to mediate between parties in
suits filed on their original side, prepare a panel of mediators, within a
period of sixty days of the commencement of these Rules, after obtaining the
approval of the High Court to the names included in the panel, and shall
publish the same on their respective Notice Board.

(ii)
Copies of the said panels referred to in clause (i) shall be forwarded to all the
Courts of equivalent jurisdiction or Courts subordinate to the Courts referred
to in sub-clause (i) and to the Bar associations attached to each of the Courts
:

(c)
The consent of the persons whose names are included in the panel shall be
obtained before empanelling them.

(d)
The panel of names shall contain a detailed Annexure giving details of the
qualifications of the mediators and their professional or technical experience
in different fields.

Rule 4
: Qualifications of persons to be empanelled under Rule 3 :

The
following persons shall be treated as qualified and eligible for being enlisted
in the panel of mediators under Rule 3, namely :

(a) (i)
Retired Judges of the Supreme Court of India;

(ii)
Retired Judges of the High Court;

(iii)
Retired District and Sessions Judges or retired Judges of the City Civil Court or Courts of equivalent status.

(b)
Legal practitioners with at least fifteen years standing at the Bar at the
level of the Supreme Court or the High Court; or the District Courts or Courts
of equivalent status.

(c)
Experts or other professionals with at least fifteen years standing; or retired
senior bureaucrats or retired senior executives;

(d)
Institutions which are themselves experts in mediation and have been recognized
as such by the High Court, provided the names of its members are approved by
the High Court initially or whenever there is change in membership.

Rule 5
: Disqualifications of persons :

The
following persons shall be deemed to be disqualified for being empanelled as mediators
:

(i) any
person who has been adjudged as insolvent or is declared of unsound mind.

(ii) or
any person against whom criminal charges involving moral turpitude are framed
by a criminal court and are pending, or

(iii) any
person who has been convicted by a criminal court for any offence involving
moral turpitude;

(iv) any
person against whom disciplinary proceedings or charges relating to moral
turpitude have been initiated by the appropriate disciplinary authority which
are pending or have resulted in a punishment.

(v) any
person who is interested or connected with the subject-matter of dispute or is
related to any one of the parties or to those who represent them, unless such
objection is waived by all the parties in writing.

(vi) any
legal practitioner who has or is appearing for any of the parties in the suit
or in any other suit or proceedings.

(vii) such
other categories of persons as may be notified by the High Court.

Rule 6
: Venue for conducting mediation :

The
mediator shall conduct the mediation at one or other of the following places:

(i)
Venue of the Lok Adalar or permanent Lok Adalat.

(ii)
Any place identified by the District Judge within the Court precincts for the
purpose of conducting mediation.

(iii)
Any place identified by the Bar Association or State Bar Council for the
purpose of mediation, within the premises of the Bar Association or State Bar
Council, as the case may be.

(iv)
Any other place as may be agreed upon by the parties subject to the approval of
the Court.

Rule
7: Preference:

The
Court shall, while nominating any person from the panel of mediators referred
to in Rule 3, consider his suitability for resolving the particular class of
dispute involved in the suit and shall give preference to those who have proven
record of successful mediation or who have special qualification or experience
in mediation.

Rule
8: Duty of mediator to disclose certain facts :

(a)
When a person is approached in connection with his possible appointment as a
mediator, the person shall disclose in writing to the parties, any
circumstances likely to give rise to a justifiable doubt as to his independence
or impartiality.

(b)
Every mediator shall, from the time of his appointment and throughout the
continuance of the mediation proceedings, without delay, disclose to the
parties in writing, about the existence of any of the circumstances referred to
in clause (a).

Rule 9
: Cancellation of appointment :

Upon
information furnished by the mediator under Rule 8 or upon any other information
received from the parties or other persons, if the Court, in which the suit is
filed, is satisfied, after conducting such inquiry as it deems fit, and after
giving a hearing to the mediator, that the said information has raised a
justifiable doubt as to the mediator's independence or impartiality, it shall
cancel the appointment by a reasoned order and replace him by another mediator.

Rule 10
: Removal or deletion from panel :

A
person whose name is placed in the panel referred to in Rule 3 may be removed
or his name be deleted from the said panel, by the Court which empanelled him, if
:

(i) he
resigns or withdraws his name from the panel for any reason;

(ii) he
is declared insolvent or is declared of unsound mind;

(iii) he
is a person against whom criminal charges involving moral turpitude are framed
by a criminal court and are pending;

(iv) he
is a person who has been convicted by a criminal court for any offence
involving moral turpitude;

(v) he
is a person against whom disciplinary proceedings on charges relating to moral
turpitude have been initiated by appropriate disciplinary authority which are
pending or have resulted in a punishment;

(vi) he
exhibits or displays conduct, during the continuance of the mediation
proceedings, which is unbecoming of a mediator;

(vii)
the Court which empanelled, upon receipt of information, if it is satisfied,
after conducting such inquiry as it deem fit, is of the view, that it is not
possible or desirable to continue the name of that person in the panel,
Provided that, before removing or deleting his name, under clause (vi) and
(vii), the Court shall hear the mediator whose name is proposed to be removed
or deleted from the panel and shall pass a reasoned order.

Rule 11
: Procedure of mediation :

(a) The
parties may agree on the procedure to be followed by the mediator in the
conduct of the mediation proceedings.

(b)
Where the parties do not agree on any particular procedure to be followed by
the mediator, the mediator shall follow the procedure hereinafter mentioned, namely
:

(i) he
shall fix, in consultation with the parties, a time schedule, the dates and the
time of each mediation session, where all parties have to be present;

(ii) he
shall hold the mediation conference in accordance with the provisions of Rule
6;

(iii) he
may conduct joint or separate meetings with the parties;

(iv)
each party shall, ten days before a session, provide to the mediator a brief
memorandum setting forth the issues, which according to it, need to be
resolved, and its position in respect to those issues and all information
reasonably required for the mediator to understand the issue;

such
memoranda shall also be mutually exchanged between the parties;

(v) each
party shall furnish to the mediator, copies of pleadings or documents or such
other information as may be required by him in connection with the issues to be
resolved.

Provided
that where the mediator is of the opinion that he should look into any original
document, the Court may permit him to look into the original document before
such officer of the Court and on such date or time as the Court may fix.

(vi) each
party shall furnish to the mediator such other information as may be required
by him in connection with the issues to be resolved.

(c)
Where there is more than one mediator, the mediator nominated by each party
shall first confer with the party that nominated him and shall thereafter
interact with the other mediators, with a view to resolving the disputes.

The
mediator shall not be bound by the Code of Civil Procedure 1908 or the Evidence
Act, 1872, but shall be guided by principles of fairness and justice, have
regard to the rights and obligations of the parties, usages of trade, if any,
and the nature of the dispute.

Rule 13
: Non-attendance of parties at sessions or meetings on due dates :

(a)
The parties shall be present personally or may be represented by their counsel
or power of attorney holders at the meetings or sessions notified by the
mediator.

(b) If
a party fails to attend a session or a meeting notified by the mediator, other
parties or the mediator can apply to the Court in which the suit is filed, to
issue appropriate directions to that party to attend before the mediator and if
the Court finds that a party is absenting himself before the mediator without
sufficient reason, the Court may take action against the said party by
imposition of costs.

(c)
The parties not resident in India, may be
represented by their counsel or power of attorney holders at the sessions or
meetings.

Rule 14
: Administrative assistance :

In
order to facilitate the conduct of mediation proceedings, the parties, or the
mediator with the consent of the parties, may arrange for administrative
assistance by a suitable institution or person.

Rule 15
: Offer of settlement by parties :

(a)
Any party to the suit may, 'without prejudice', offer a settlement to the other
party at any stage of the proceedings, with notice to the mediator.

(b)
Any party to the suit may make a, 'with prejudice' offer, to the other party at
any stage of the proceedings, with notice to the mediator.

Rule 16
: Role of mediator :

The
mediator shall attempt to facilitate voluntary resolution of the dispute by the
parties, and communicate the view of each party to the other, assist them in
identifying issues, reducing misunderstandings, clarifying priorities,
exploring areas of compromise and generating options in an attempt to solve the
dispute, emphasizing that it is the responsibility of the parties to take
decision which effect them; he shall not impose any terms of settlement on the
parties.

Rule 17
: Parties alone responsible for taking decision :

The
parties must understand that the mediator only facilitates in arriving at a
decision to resolve disputes and that he will not and cannot impose any
settlement nor does the mediator give any warranty that the mediation will
result in a settlement. The mediator shall not impose any decision on the
parties.

Rule 18
: Time limit for completion of mediation :

On the
expiry of sixty days from the date fixed for the first appearance of the
parties before the mediator, the mediation shall stand terminated, unless the
Court, which referred the matter, either suo moto, or upon request by the
mediator or any of the parties, and upon hearing all the parties, is of the
view that extension of time is necessary or may be useful; but such extension
shall not be beyond a further period of thirty days.

Rule 19
: Parties to act in good faith :

While
no one can be compelled to commit to settle his case in advance of mediation,
all parties shall commit to participate in the proceedings in good faith with
the intention to settle the dispute, if possible.

(1)
When a mediator receives confidential information concerning the dispute from
any party, he shall disclose the substance of that information to the other
party, if permitted in writing by the first party.

(2)
when a party gives information to the mediator subject to a specific condition
that it be kept confidential, the mediator shall not disclose that information
to the other party, nor shall the mediator voluntarily divulge any information
regarding the documents or what is conveyed to him orally as to what transpired
during the mediation.

(3)
Receipt or perusal, or preparation of records, reports or other documents by
the mediator, or receipt of information orally by the mediator while serving in
that capacity, shall be confidential and the mediator shall not be compelled to
divulge information regarding the documents nor in regard to the oral
information nor as to what transpired during the mediation.

(4)
Parties shall maintain confidentiality in respect of events that transpired
during mediation and shall not rely on or introduce the said information in any
other proceedings as to :

(a) views
expressed by a party in the course of the mediation proceedings;

(b)
documents obtained during the mediation which were expressly required to be
treated as confidential or other notes, drafts or information given by parties
or mediators;

(c) proposals
made or views expressed by the mediator;

(d) admission
made by a party in the course of mediation proceedings;

(e) the
fact that a party had or had not indicated willingness to accept a proposal;

(5)
There shall be no stenographic or audio or video recording of the mediation
proceedings.

Rule 21
: Privacy Mediation sessions and meetings are private; only the concerned
parties or their counsel or power of attorney holders can attend.

Other
persons may attend only with the permission of the parties or with the consent
of the mediator.

Rule 22
: Immunity :

No
mediator shall be held liable for anything bona fide done or omitted to be done
by him during the mediation proceedings for civil or criminal action nor shall
he be summoned by any party to the suit to appear in a Court of law to testify
in regard to information received by him or action taken by him or in respect
of drafts or records prepared by him or shown to him during the mediation
proceedings.

Rule 23
: Communication between mediator and the Court :

(a) In
order to preserve the confidence of parties in the Court and the neutrality of
the mediator, there should be no communication between the mediator and the
Court, except as stated in clauses (b) and (c) of this Rule.

(b) If
any communication between the mediator and the Court is necessary, it shall be
in writing and copies of the same shall be given to the parties or their
counsel or power of attorney.

(c)
Communication between the mediator and the Court shall be limited to
communication by the mediator :

(i) with
the Court about the failure of party to attend;

(ii) with
the Court with the consent of the parties;

(iii) regarding
his assessment that the case is not suited for settlement through mediation;

(iv) that
the parties have settled the dispute or disputes.

Rule 24
: Settlement Agreement :

(1)
Where an agreement is reached between the parties in regard to all the issues
in the suit or some of the issues, the same shall be reduced to writing and
signed by the parties or their power of attorney holder. If any counsel have
represented the parties, they shall attest the signature of their respective
clients.

(2)
The agreement of the parties so signed and attested shall be submitted to the
mediator who shall, with a covering letter signed by him, forward the same to
the Court in which the suit is pending.

(3)
Where no agreement is arrived at between the parties, before the time limit
stated in Rule 18 or where, the mediator is of the view that no settlement is
possible, he shall report the same to the said Court in writing.

(1)
Within seven days of the receipt of any settlement, the Court shall issue
notice to the parties fixing a day for recording the settlement, such date not
being beyond a further period of fourteen days from the date of receipt of
settlement, and the Court shall record the settlement, if it is not collusive.

(2)
The Court shall then pass a decree in accordance with the settlement so
recorded, if the settlement disposes of all the issues in the suit.

(3) If
the settlement disposes of only certain issues arising in the suit, the Court
shall record the settlement on the date fixed for recording the settlement and
(i) if the issues are servable from other issues and if a decree could be
passed to the extent of the settlement covered by those issues, the Court may
pass a decree straightaway in accordance with the settlement on those issues
without waiting for a decision of the Court on the other issues which are not
settled.

(ii) if
the issues are not servable, the Court shall wait for a decision of the Court
on the other issues which are not settled.

Rule 26
: Fee of mediator and costs :

(1) At
the time of referring the disputes to mediation, the Court shall, after
consulting the mediator and the parties, fix the fee of the mediator.,

(2) As
far as possible a consolidated sum may be fixed rather than for each session or
meeting.

(3)
Where there are two mediators as in clause (b) of Rule 2, the Court shall fix
the fee payable to the mediators which shall be shared equally by the two sets
of parties.

(4)
The expense of the mediation including the fee of the mediator, costs of
administrative assistance, and other ancillary expenses concerned, shall be
borne equally by the various contesting parties or as may be otherwise directed
by the Court.

(5)
Each party shall bear the costs for production of witnesses on his side
including experts, or for production of documents.

(6)
The mediator may, before the commencement of mediation, direct the parties to
deposit equal sums, tentatively, to the extent of 40% of the probable costs of
the mediation, as referred to in clauses (1), (3) and (4). The remaining 60%
shall be deposited with the mediator, after the conclusion of mediation. For
the amount of cost paid to the mediator, he shall issue the necessary receipts
and a statement of account shall be filed, by the mediator in the Court.

(7)
The expense of mediation including fee, if not paid by the parties, the Court
shall, on the application of the mediator or parties, direct the concerned
parties to pay, and if they do not pay, the Court shall recover the said
amounts as if there was a decree for the said amount.

(8)
Where a party is entitled to legal aid under section 12 of the Legal Services
Authority Act, 1987, the amount of fee payable to the mediator and costs shall
be paid by the concerned Legal Services Authority under that Act.

Rule 27
: Ethics to be followed by mediator :

The
mediator shall :

(1) follow
and observe these Rules strictly and with due diligence;

(2) not
carry on any activity or conduct which could reasonably be considered as
conduct unbecoming of a mediator;

(3)
uphold the integrity and fairness of the mediation process;

(4) ensure
that the parties involved in the mediation and fairly informed and have an
adequate understanding of the procedural aspects of the process;

(5) satisfy
himself/herself that he/she is qualified to undertake and complete the
assignment in a professional manner;

(6)
disclose any interest or relationship likely to affect impartiality or which
might seek an appearance of partiality or bias;

(7)
avoid, while communicating with the parties, any impropriety or appearance of
impropriety;

(8) be
faithful to the relationship of trust and confidentiality imposed in the office
of mediator;

(9)
conduct all proceedings related to the resolutions of a dispute, in accordance
with the applicable law;

(10)
recognize that mediation is based on principles of self-determination by the
parties and that mediation process relies upon the ability of parties to reach
a voluntary, undisclosed agreement;

(11)
maintain the reasonable expectations of the parties as to confidentiality;

(12) refrain
from promises or guarantees of results.

Rule 28
: Transitory provisions :

Until
a panel of arbitrators is prepared by the High Court and the District Court,
the Courts referred to in Rule 3, may nominate a mediator of their choice if
the mediator belongs to the various classes of persons referred to in Rule 4
and is duly qualified and is not disqualified, taking into account the suitability
of the mediator for resolving the particular dispute." Report No.3 Report
No.3 deals with the Case Flow Management and Model Rules. The case management
policy can yield remarkable results in achieving more disposal of the cases.
Its mandate is for the Judge or an officer of the court to set a time-table and
monitor a case from its initiation to its disposal. The Committee on survey of
the progress made in other countries has come to a conclusion that the case
management system has yielded exceedingly good results.

Model
Case Flow Management Rules have been separately dealt with for trial courts and
first appellate subordinate courts and for High Courts. These draft Rules
extensively deal with the various stages of the litigation. The High Courts can
examine these Rules, discuss the matter and consider the question of adopting
or making case law management and model rules with or without modification, so
that a step forward is taken to provide to the litigating public a fair, speedy
and inexpensive justice.

..High
Court Rules, 2003 In exercise of the power conferred by Part X of the Code of
Civil Procedure 1908, (5 of 1908) and .. High Court Act, and all other powers
enabling, the . High Court hereby makes the following Rules, in regard to case
flow management in the subordinate courts.

(A)
Model Rules for Trial Courts and First Appellate Subordinate Courts I. Division
of Civil Suits and Appeals into Tracks

1.
Based on the nature of dispute, the quantum of evidence to be recorded and the
time likely to be taken for the completion of suit, the suits shall be
channeled into different tracks.

Track
I may include suits for maintenance, divorce and child custody and visitation
rights, grant of letters of administration and succession certificate and simple
suits for rent or for eviction (upon notice under Section 106 of Transfer of
Property Act). Track 2 may consist of money suits and suits based solely on
negotiable instruments. Track 3 may include suits concerning partition and like
property disputes, trademarks, copyrights and other intellectual property
matters. Track 4 may relate to other matters. All efforts shall be taken to
complete the suits in track 1 within a period of 9 months, track 2 within 12
months and suits in track 3 and 4 within 24 months.

This
categorization is illustrative and it will be for the High Court to make
appropriate categorization. It will be for the judge concerned to make an
appropriate assessment as to which track any case can be assigned.

2.
Once in a month, the registry/administrative staff of each Court will prepare a
report as to the stage and progress of cases which are proposed to be listed in
next month and place the report before the Court. When the matters are listed
on each day, the judge concerned may take such decision as he may deem fit in
the presence of counsel/parties in regard to each case for removing any
obstacles in service of summons, completion of pleadings etc. with a view to
make the case ready for disposal.

3. The
judge referred to in clause (2) above, may shift a case from one track to
another, depending upon the complexity and other circumstances of the case.

4.
Where computerization is available, the monthly data will be fed into the
computer in such a manner that the judge referred to in clause (2) above, will
be able to ascertain the position and the stage of every case in every track
from the computer screen. Over a period, all cases pending in his Court will be
covered. Where computerization is not available, the monitoring must be done
manually.

5. The
judge referred to in clause (2) above, shall monitor and control the flow or
progress of every case, either from the computer or from the register or data
placed before him in the above manner or in some other manner he may innovate.

II.
Original Suit :

1.
Fixation of time limits while issuing notice :

(a)
Wherever notice is issued in a suit, the notice should indicate that the Code
prescribes a maximum of 30 days for filing written statement (which for special
reasons may be extended upto 90 days) and, therefore, the defendants may
prepare the written statement expeditiously and that the matter will be listed
for that purpose on the expiry of eight weeks from the date of issue of notice
(so that it can be a definite date). After the written statement is filed, the
replication (if any, proposed and permitted), should be filed within six weeks
of receipt of the written statement. If there are more than one defendant, each
one of the defendant should comply with this requirement within the time-limit.

(b)
The notice referred to in clause (a) shall be accompanied by a complete copy of
the plaint and all its annexure/enclosures and copies of the interlocutory
applications, if any.

(c) If
interlocutory applications are filed along with the plaint, and if an ex-parte
interim order is not passed and the Court is desirous of hearing the
respondent, it may, while sending the notice along with the plaint, fix an
earlier date for the hearing of the application (than the date for filing
written statement) depending upon the urgency for interim relief.

2.
Service of Summons/notice and completion of pleadings :

(a)
Summons may be served as indicated in clause (3) of Rule 9 of Order V.

(b) In
the case of service of summons by the plaintiff or a courier where a return is
filed that the defendant has refused notice, the return will be accompanied by
an undertaking that the plaintiff or the courier, as the case may be, is aware
that if the return is found to be false, he can be punished for perjury or
summarily dealt with for contempt of Court for abuse of the provisions of the
Code. Where the plaintiff comes forward with a return of 'refusal', the
provisions of Order 9A Rule (4) will be followed by re-issue of summons through
Court.

(c) If
it has not been possible to effect service of summons under Rule 9 of Order V,
the provisions of Rule 17 of Order V shall apply and the plaintiff shall within
7 days from the date of its inability to serve the summons, to request the
Court to permit substituted service. The dates for filing the written statement
and replication, if any, shall accordingly stand extended.

3.
Calling of Cases (Hajri or Call Work or Roll Call) :

The
present practice of the Court-master or Bench-clerk calling all the cases
listed on a particular day at the beginning of the day in order to confirm
whether counsel are ready, whether parties are present or whether various steps
in the suit or proceeding has been taken, is consuming a lot of time of the
Court, sometimes almost two hours of the best part of the day when the judge is
fresh. After such work, the Court is left with very limited time to deal with
cases listed before it. Formal listing should be first before a nominated
senior officer of the registry, one or two days before the listing in Court. He
may give dates in routine matters for compliance with earlier orders of Court.
Cases will be listed before Court only where an order of the Court is necessary
or where an order prescribing the consequences of default or where a peremptory
order or an order as to costs is required to be passed on the judicial side.
Cases which have to be adjourned as a matter of routine for taking steps in the
suit or proceeding should not be unnecessarily listed before Court. Where
parties/counsel are not attending before the Court-officer or are defiant or
negligent, their cases may be placed before the Court. Listing of cases on any
day before a Court should be based on a reasonable estimate of time and number
of cases that can be disposed of by the Court in a particular day. The Courts
shall, therefore, dispense with the practice of calling all the cases listed
adjourned to any particular day. Cases will be first listed before a nominated
senior officer of the Court, nominated for the purpose.

4.
Procedure on the grant of interim orders:

(a) If
an interim order is granted at the first hearing by the Court, the defendants
would have the option of moving appropriate applications for vacating the
interim order even before the returnable date indicated in the notice and if
such an application is filed, it shall be listed as soon as possible even
before the returnable date.

(b) If
the Court passes an ad-interim ex-parte order in an interlocutory application,
and the reply by the defendants is filed, and if, thereafter, the plaintiff
fails to file the rejoinder (if any) without good reason for the delay, the
Court has to consider whether the stay or interim order passed by the Court
should be vacated and shall list the case with that purpose. This is meant to
prevent parties taking adjournment with a view to have undue benefit of the ad
interim orders. The plaintiff may, if he so chooses, also waive his right to
file a rejoinder. A communication of option by the plaintiff not to file a
rejoinder, made to the registry will be deemed to be the completion of
pleadings in the interlocutory application.

5.
Referral to Alternate Dispute Resolution:

(In
the hearing before the Court, after completion of pleadings, time limit for
discovery and inspection, and admission and denials, of documents shall be
fixed, preferably restricted to 4 weeks each) After the completion of admission
and denial of documents by the parties, the suit shall be listed before the
Court (for examination of parties under Order X of the Civil Procedure Code. A
joint statement of admitted facts shall be filed before the said date.) The
Court shall thereafter, follow the procedure prescribed under the Alternative
Dispute Resolution and Mediation Rules, 2002.

6.
Procedure on the failure of Alternate Dispute Resolution :

On the
filing of report by the Mediator under the Mediation Rules that efforts at
Mediation have failed, or a report by the Conciliator under the provisions of
the Arbitration and Conciliation Act, 1996, or a report of no settlement in the
Lok Adalat under the provisions of the Legal Services Authority Act, 1987 the
suit shall be listed before the registry within a period of 14 days. At the
said hearing before the registry, all the parties shall submit the draft issues
proposed by them. The suit shall be listed before the Court within 14 days
thereafter for framing of issues.

When
the suit is listed after failure of the attempts at conciliation, arbitration
or Lok Adalat, the Judge may merely inquire whether it is still possible for
the parties to resolve the dispute.

This
should invariably be done by the Judge at the first hearing when the matter
comes back on failure of conciliation, mediation or Lok Adalt.

If the
parties are not keen about settlement, the Court shall frame the issues and direct
the plaintiff to start examining his witnesses. The procedure of each witness
filing his examination- in-chief and being examined in cross or re- examination
will continue, one after the other.

After
completion of evidence on the plaintiff's side, the defendants shall lead
evidence likewise, witness after witness, the chief examination of each witness
being by affidavit and the witness being then cross-examined or re-examined.
The parties shall keep he affidavit in chief-examination ready whenever the witness's
examination is taken up. As far as possible, evidence must be taken up day by
day as stated in clause (a) of proviso to Rule 2 of Order XVII. The parties
shall also indicate the likely duration for the evidence to be completed, and
for the arguments to be thereafter heard. The Judge shall ascertain the
availability of time of the Court and will list the matter for trial on a date
when the trial can go on from day to day and conclude the evidence. The
possibility of further negotiation and settlement should be kept open and if
such a settlement takes place, it should be open to the parties to move the
registry for getting the matter listed at an earlier date for disposal.

7.
Referral to Commissioner for recordal of evidence :

(a)
The High Court shall conduct an examination on the subjects of the Code of
Civil Procedure and Evidence Act. Only those advocates who have passed an
examination conducted by the High Court on the subjects of 'Code of Civil
Procedure' and Evidence Act, - shall be appointed as Commissioners for
recording evidence.

They
shall be ranked according to the marks secured by them.

(b) It
is not necessary that in every case the Court should appoint a Commissioner for
recording evidence. Only if the recording of evidence is likely to take a long
time, or there are any other special grounds, should the Court consider
appointing a Commissioner for recording the evidence.

The
Court should direct that the matter be listed for arguments fifteen days after
the Commissioner files his report with the evidence.

The
Court may initially fix a specific period for the completion of the recording
of the evidence by the Commissioner and direct the matter to be listed on the
date of expiry of the period, so that Court may know whether the parties are
co-operating with the Commissioner and whether the recording of evidence is
getting unnecessarily prolonged.

(c)
Commissioners should file an undertaking in Court upon their appointment that
they will keep the records handed over to them and those that may be filed
before them, safe and shall not allow any party to inspect them in the absence
of the opposite party/counsel. If there is delay of more than one month in the
dates fixed for recording evidence, it is advisable for them to return the file
to the Court and take it back on the eve of the adjourned date.

8. Costs
:

So far
as awarding of costs at the time of judgment is concerned, awarding of costs
must be treated generally as mandatory in as much as the liberal attitude of
the Courts in directing the parties to bear their own costs had led parties to
file a number of frivolous cases in the Courts or to raise frivolous and
unnecessary issues. Costs should invariably follow the event. Where a party
succeeds ultimately on one issue or point but loses on number of other issues
or points which were unnecessarily raised, costs must be appropriately
apportioned. Special reasons must be assigned if costs are not being awarded.

Costs
should be assessed according to rules in force. If any of the parties has
unreasonably protracted the proceedings, the Judge should consider exercising
discretion to impose exemplary costs after taking into account the expense
incurred for the purpose of attendance on the adjourned dates.

9.
Proceedings for Perjury:

If the
Trial Judge, while delivering the judgment, is of the view that any of the
parties or witnesses have willfully and deliberately uttered blatant
falsehoods, he shall consider (at least in some grave cases) whether it is a
fit case where prosecution should be initiated for perjury and order
prosecution accordingly.

10.
Adjournments:

The
amendments to the Code have restricted the number of adjournments to three in
the course of hearing of the suit, on reasonable cause being shown. When a suit
is listed before a Court and any party seeks adjournment, the Court shall have
to verify whether the party is seeking adjournment due to circumstances beyond
the control of the party, as required by clause (b) of proviso to Rule 2 of
Order XVII. The Court shall impose costs as specified in Rule 2 of Order XVII.

11.
Miscellaneous Applications:

The
proceedings in a suit shall not be stayed merely because of the filing of
Miscellaneous Application in the course of suit unless the Court in its
discretion expressly thinks it necessary to stay the proceedings in the suit.

III.
First Appeals to Subordinate Courts 1. Service of Notice of Appeal :

First
Appeals being appeals on question of fact and law, Courts are generally
inclined to admit the appeal and it is only in exceptional cases that the
appeal is rejected at the admission stage under Rule 11 of Order XLI. In view
of the amended CPC, a copy of the memorandum of appeal is required to be filed
in the subordinate Court. It has been clarified by the Supreme Court that the requirement
of filing a copy of appeal memorandum in the sub-ordinate Court does not mean
that appeal memorandum cannot be filed in the Appellate Court immediately for
obtaining interim orders.

Advance
notice should simultaneously be given by the counsel for the party who is
proposing to file the appeal, to the counsel for the opposite party who
appeared in the sub-ordinate Court so as to enable the respondents to appear if
they so choose, even at the first hearing stage.

2.
Essential Documents to be filed with the Memorandum of Appeal :

The
Appellant shall, as far as possible, file, along with the appeal, copies of
essential documents marked in the suit, for the purpose of enabling the
appellate Court to understand the points raised or for purpose of passing
interim orders.

3.
Fixation of time limits in interlocutory matters :

Whenever
notice is issued by the appellate Court in interlocutory matters, the notice
should indicate the date by which the reply should be filed. The rejoinder, if
any, should be filed within four weeks of receipt of the reply. If there are
more parties than one who are Respondents, each one of the Respondent should
comply with this requirement within the time limit and the rejoinder may be
filed within four weeks from the receipt of the last reply.

4.
Steps for completion of all formalities/ (Call Work) (Hajri) :

The
appeal shall be listed before the registry for completion of all formalities
necessary before the appeal is taken up for final hearing.

The
procedure indicated above of listing the case before a senior officer of the
appellate Court registry for giving dates in routine matters must be followed
to reduce the 'call work' (Hajri) and only where judicial orders are necessary,
such cases should be listed before Court.

5. Procedure
on grant of interim-orders :

If an
interim order is granted at the first hearing by the Court, the Respondents
would have the option of moving appropriate applications for vacating the
interim order even before the returnable date indicated in the notice and if
such an application is filed, it shall be listed as soon as possible even
before the returnable date.

If the
Court passes an ad-interim ex-parte order, and if the reply is filed by the
Respondents and if, without good reason, the appellant fails to file the
rejoinder, Court shall consider whether it is a fit case for vacating the stay
or interim order and list the case for that purpose. This is intended to see
that those who have obtained ad interim orders do not procrastinate in filing replies.

The
appellant may also waive his right to file the rejoinder. Such choice shall be
conveyed to the registry on or before the date fixed for filing of rejoinder.
Such communication of option by the applicant to the registry will be deemed to
be completion of pleadings.

6.
Filing of Written submissions :

Both
the appellants and the respondents shall be required to submit their written
submissions two weeks before the commencement of the arguments in the appeal.

The
cause-list should indicate if written submissions have been filed or not.
Wherever they have not been filed, the Court must insist on their being filed
within a particular period to be fixed by the Court and each party must serve a
copy thereof on the opposite side before the date of commencement of arguments.
There is no question of parties filing replies to each other's written
submissions.

The
Court may consider having a Caution List/Alternative List to take care of
eventualities when a case does not go on before a court, and those cases may be
listed before a court where, for any reason, the scheduled cases are not taken
up for hearing.

7. Costs
:

Awarding
of costs must be treated generally as mandatory in as much as it is the liberal
attitude if the Courts in not awarding costs that has led to frivolous points
being raised in appeals or frivolous appeals being filed in the courts. Costs
should invariably follow the event and reasons must be assigned by the
appellate Court for not awarding costs. If any of the parties have unreasonably
protracted the proceedings, the Judge shall have the discretion to impose
exemplary costs after taking into account the costs that may have been imposed
at the time of adjournments.

IV.
Application/Petition under Special Acts This chapter deals with applications/petitions
filed under Special Acts like the Industrial Disputes Act, Hindu Marriage Act,
Indian Succession Act etc.

The Practise
directions in regard to Original Suits should mutatis mutandis apply in respect
of such applications/petitions.

1.
Criminal Trials should be classified based on offence, sentence and whether the
accused is on bail or in jail. Capital punishment, rape and cases involving
sexual offences or dowry deaths should be kept in Track I. Other cases where
the accused is not granted bail and is in jail, should be kept in Track II.
Cases which affect a large number of persons such as cases of mass cheating,
economic offences, illicit liquor tragedy and food adulteration cases, etc.
should be kept in Track III. Offences which are tried by special courts such as
POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in Track
IV.

Track
V all other offences.

The endeavour
should be to complete Track I cases within a period of nine months, Track II
and Track III cases within twelve months and Track IV within fifteen months.

2. The
High Court may classify criminal appeals pending before it into different
tracks on the same lines mentioned above.

(b)
Criminal Appeals

3.
Wherever an appeal is filed by a person in jail, and also when appeals are
filed by State, as far as possible, the memorandum appeal may be accompanied by
important documents, if any, having a bearing on the question of bail.

4. In
respect of appeals filed against acquittals, steps for appointment of amicus
curie or State Legal Aid counsel in respect of the accused who do not have a
lawyer of their own should be undertaken by the registry/(State Legal Services
Authority) immediately after completion of four weeks of service of notice. It
shall be presumed that in such an event the accused is not in a position to
appoint counsel.

5.
Advance notice should simultaneously be given by the counsel for the party who
is proposing to file the appeal, to the counsel for the opposite party in the
subordinate Court, so as to enable the other party to appear if they so choose
even at the first hearing stage.

VI.
Notice issued under S.80 of Code of Civil Procedure :

Every
public authority shall appoint an officer responsible to take appropriate
action on a notice issued under S.80 of the Code of Civil Procedure. Every such
officer shall take appropriate action on receipt of such notice. If the Court
finds that the concerned officer, on receipt of the notice, failed to take
necessary action or was negligent in taking the necessary steps, the Court
shall hold such officer responsible and recommend appropriate disciplinary
action by the concerned authority.

VII.
Note Whenever there is any inconsistency between these rules and the provisions
of either the Code of Civil Procedure, 1908 or the Code of Criminal Procedure
1973 or the High Courts Act or any other Statutes, the provisions of such Codes
and Statutes shall prevail.

(B)
Model Case Flow Management Rules in High Court ..High Court Rules, 2003 In
exercise of the power conferred by Article 225 of the Constitution of India,
and Chapter X of the Code of Civil Procedure, 1908 (5 of 1908) and Section .. of
the .. High Court Act and all other powers enabling it, the High Court hereby
makes the following Rules :

I.
Division of Cases into different tracks :

1.
Writ Petitions : The High Court shall, at the stage of admission or issuing
notice before admission categorise the Writ Petitions other than Writ of Habeas
Corpus, into three categories depending on the urgency with which the matter
should be dealt with : the Fast Track, the Normal Track and the Slow Track. The
petitions in the Fast Track shall invariably be disposed of within a period not
exceeding six months while the petitions in the Normal Track should not take
longer than a year. The petitions in the Slow Track, subject to the pendency of
other cases in the Court, should ordinarily be disposed of within a period of
two years.

Where
an interim order of stay or injunction is granted in respect of liability to
tax or demolition or eviction from public premises etc. shall be put on the
fast track. Similarly, all matters involving tenders would also be put on the
Fast Track.

These
matters cannot brook delays in disposal.

2.
Senior officers of the High Court, nominated for the purpose, shall at
intervals of every month, monitor the stage of each case likely to come up for
hearing before each Bench (Division Bench or Single Judge) during that month
which have been allocated to the different tracks. The details shall be placed
before the Chief Justice or Committee nominated for that purpose as well as the
concerned Judge dealing with cases.

3. The
Judge or Judges referred to in Clause (2) above may shift the case from one
track to another, depending upon the complexity, (urgency) and other
circumstances of the case.

4.
Where computerization is available, data will be fed into the computer in such
a manner that the court or judge or judges, referred to in Clause (2) above
will be able to ascertain the position and stage of every case in every track
from the computer screen.

5.
Whenever the roster changes, the judge concerned who is dealing with final
matters shall keep himself informed about the stage of the cases in various
tracks listed before him during every week, with a view to see that the cases
are taken up early.

6.
Other matters : The High Court shall also divide Civil Appeals and other
matters in the High Court into different tracks on the lines indicated in
sub-clauses (2) to (5) above and the said clauses shall
apply, mutatis mutandis, to the civil appeals filed in the High Court. The High
Court shall make a subject-wise division of the appeals/revision application
for allocation into different tracks.

(Division
of criminal petitions and appeals into different tracks is dealt with
separately under the heading 'criminal petitions and appeals'.)

II.
Writ of Habeas Corpus :

Notices
in respect of Writ of Habeas Corpus where the person is in custody under orders
of a State Government or Central Government shall invariably be issued by the
Court at the first listing and shall be made returnable within 48 hours. State
Government or Central Government may file a brief return enclosing the relevant
documents to justify the detention. The matter shall be listed after notice on
the fourth working day after issuance of notice, and the Court shall consider
whether a more detailed return to the Writ is necessary, and, if so required,
shall give further time of a week and three days' time for filing a rejoinder.
A Writ of Habeas Corpus shall invariably be disposed of within a period of
fifteen days. It shall have preference over and above fast-track cases.

III.
Mode of Advance Service :

The Court
rules will provide for mode of service of notice on the standing counsel for
Respondents wherever available, against whom, interim orders are sought. Such
advance service shall generally relate to Governments or public sector
undertakings who have Standing Counsel.

FIRST
APPEALS TO HIGH COURT 1. Service of Notice of Appeal :

First
Appeals being appeals on questions of fact and law, Courts are generally
inclined to admit the appeal and it is only in exceptional cases that the
appeal is rejected under Order XLI Rule 11 at the admission stage. In view of
the amended CPC, a copy of the appeal is required to be filed in the Trial
Court. It has been clarified by the Supreme Court that the requirement of
filing of appeal in the Trial Court does not mean that the party cannot file
the appeal in the appellate Court (High Court) immediately for obtaining
interim orders.

In
addition to the process for normal service as per the Code of Civil Procedure,
advance notice should simultaneously be given by the counsel for the party who
is proposing to file the appeal, to the counsel for the opposite party in the
Trial Court itself so as to enable them to inform the parties to appear if they
so choose even at the first hearing stage.

2.
Filing of Documents :

The
Appellant shall, on the appeal being admitted, file all the essential papers
within such period as may be fixed by the High Court for the purpose the High
Court understanding the scope of the dispute and for the purpose of passing
interlocutory orders.

3.
Printing or typing of Paper Book :

Printing
and preparation of paper-books by the High Court should be done away with.
After service of notice is effected, counsel for both sides should agree on the
list of documents and evidence to be printed or typed and the same shall be
made ready by the parties within the time to be fixed by the Court. Thereafter
the paper book shall be got ready. It must be assured that the paper books are
ready at lease six months in advance before the appeal is taken up for
arguments. (Cause lists must specify if paper books have been filed or not).

4.
Filing of Written Submissions and time for oral arguments :

Both
the appellants and the respondents shall be required to submit their written
submissions with all the relevant pages as per the Court paper- book marked
therein within a month of preparation of such paper-books, referred to in para
3 above.

Cause
list may indicate if written submissions have been filed. If not, the Court
must direct that they be filed immediately.

After
the written submissions are filed, (with due service of copy to the other side)
the matter should be listed before the Registrar/Master for the parties to
indicate the time that will be taken for arguments in the appeal.
Alternatively, such matters may be listed before a judge in chambers for
deciding the time duration and thereafter to fix a date of hearing on a clear
date when the requisite extent of time will be available.

In the
event that the matter is likely to take a day or more, the High Court may consider
having a Caution List/Alternative List to meet eventualities where a case gets
adjourned due to unavoidable reasons or does not go on before a court, and
those cases may be listed before a court where, for one reason or another, the
scheduled cases are not taken up for hearing.

5.
Court may explore possibility of settlement :

At the
first hearing of a First Appeal when both parties appear, the Court shall find
out if there is a possibility of a settlement. If the parties are agreeable
even at that stage for mediation or conciliation, the High Court could make a
reference to mediation or conciliation for the said purpose.

If
necessary, the process contemplated by Section 89 of CPC may be resorted to by
the Appellate Court so, however, that the hearing of the appeal is not
unnecessarily delayed.

Whichever
is the ADR process adopted, the Court should fix a date for a report on the ADR
two months from the date of reference.

V.
Appeals to Division Bench from judgment of Single Judge of High Court [Letter
Patent Appeals (LPA) or similar appeals under High Courts Acts] :

An
appeal to a Division Bench from judgment of a Single Judge may lie in the
following cases :

(1)
Appeals from interlocutory orders of the Single Judge in original jurisdiction
matters including writs; (2) appeals from final judgments of a Single Judge in
original jurisdiction; (3) other appeals permitted by any law to a Division
Bench.

Appeals
against interlocutory orders falling under category (1) above should be
invariably filed after advance notice to the opposite counsel (who has appeared
before the Single Judge) so that both the sides will be represented at the very
first hearing of the appeals. If both parties appear at the first hearing,
there is no need to serve the opposite side by normal process and at least in
some cases, the appeals against interlocutory orders can be disposed of even at
the first hearing. If, for any reason, this is not practicable, such appeals
against interim orders should be disposed of within a period of a month.

In
cases referred to above, necessary documents should be kept ready by the
counsel to enable the Court to dispose of the appeal against interlocutory
matter at the first hearing itself.

In all
Appeals against interim orders in the High Court, in writs and civil matters,
the Court should endeavour to set down and observe a strict time limit in
regard to oral arguments. In case of Original Side appeals/LPAs arising out of
final orders in a Writ Petition or arising out of civil suits filed in the High
Court, a flexible time schedule may be followed.

The
practice direction in regard to First Appeal should mutatis mutandis apply in
respect of LPAs/Original Side appeals against final judgments of the Single
Judge.

Writ
Appeals/Letters Patent Appeals arising from orders of the Single Judge in a
Writ Petition should be filed with simultaneous service on the counsel for the
opposite party who had appeared before the Single Judge or on service of the
opposite party.

Writ
Appeals against interim orders of the Single Judge should invariably be
disposed of early and, at any rate, within a period of thirty days from the
first hearing. Before Writ Appeals against final orders in Writ Petitions are
heard, brief written submissions must be filed by both parties within such time
as may be fixed by the Court.

VI.
Second Appeals :

Even
at the stage of admission, the questions of law with a brief synopsis and
written submissions on each of the propositions should be filed so as to enable
the Court to consider whether there is a substantial question of law.

Wherever
the Court is inclined to entertain the appeal, apart from normal procedure for
service as per rules, advance notice shall be given to the counsel who had
appeared in the first appeal letter Court. The notice should require the
respondents to file their written submissions within a period of eight weeks
from service of notice. Efforts should be made to complete the hearing of the
Second Appeals within a period of six months.

VII.
Civil Revision :

A revision
petition may be filed under Section 115 of the Code or under any special
statute. In some High Courts, petitions under Article 227 of the Constitution
of India are registered as civil revision petitions. The practise direction in
regard to LPAs and First Appeals to the High Courts, should mutatis mutandis
apply in respect of revision petitions.

VIII.
Criminal Appeals :

Criminal
Appeals should be classified based on offence, sentence and whether the accused
is on bail or in jail. Capital punishment cases, rape, sexual offences, dowry
death cases should be kept in Track I. Other cases where the accused is not
granted bail and is in jail, should be kept in Track II. Cases which affect a
large number of persons such as cases of mass cheating, economic offences,
illicit liquor tragedy, food adulteration cases, offences of sensitive nature
should be kept in Track III. Offences which are tried by special courts such as
POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in Track
IV. Track V all other offences.

The endeavour
should be to complete Track I cases within a period of six months, Track II
cases within nine months, Track III within a year, Track IV and Track V within
fifteen months.

Wherever
an appeal is filed by a person in jail, and also when appeals are filed by
State, the complete paper-books including the evidence, should be filed by the
State within such period as may be fixed by Court.

In
appeals against acquittals, steps for appointment of amicus curie or State
Legal Aid counsel in respect of the accused who do not have a lawyer of their
own should be undertaken by the Registry/(State Legal Services Committee)
immediately after completion of four weeks of service of notice. It shall be
presumed that in such an event the accused is not in a position to appoint
counsel, and within two weeks thereafter counsel shall be appointed and shall
be furnished all the papers.

IX.
Note Wherever there is any inconsistency between these rules and the provisions
of either the Code of Civil Procedure, 1908 or the Code of Criminal Procedure,
1973 or the High Court Act, or any other statute, the provisions of such Codes
and statute, the provisions of such Codes and statutes shall prevail."
Before concluding, we wish to place on record our sincere gratitude and
appreciation for the members of the Committee, in particular Hon'ble Mr.Justice
M. Jagannadha Rao, Chairman of the Committee and Law Commission of India who as
usual has taken great pains in examining the whole issue in detail and going into
depth of it and has filed the three Reports above referred which we hope will
go a long way in dispensation of effective and meaningful administration of
justice to the litigating public.

We
hope that the High Courts in the country would be in a position to examine the
aforesaid rules expeditiously and would be able to finalise the Rules within a
period of four months.

Further,
we place on record our deep appreciation for very useful assistance rendered by
Senior Advocates Mr.K.Parasaran and Mr.Arun Mohan who on request from this
court readily agreed to render assistance as Amicus Curie. We also record our
appreciation for useful assistance rendered by Mr.Gulam Vahnavati, learned
Solicitor General on behalf of Union of India and the Attorney General of India
and Mr.T.L.V. Iyer, Senior Advocate on behalf of Bar Council of India.

A copy
of this judgment shall be sent to all the High Courts through Registrar
Generals, Central Government through Cabinet Secretary and State
Governments/Union Territories through Chief Secretaries so that expeditious
follow up action can be taken by all concerned. The Registrar Generals, Central
Government and State/Union Territories shall file the progress report in regard
to the action taken within a period of four months.